Nestle Australia Ltd

[2022] FWCA 2385

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Nestle Australia Ltd

(AG2022/1930)

Nestle Smithtown Enterprise Agreement 2022

Food, beverages and tobacco manufacturing industry
COMMISSIONER MATHESON	SYDNEY, 18 JULY 2022

Application for approval of the Nestle Smithtown Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Nestle Smithtown Enterprise Agreement 2022 (Agreement). The application was made by Nestle Australia Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

There is an error in clause 6.14 of the Agreement in that it provides that “Agreement” means the “Nestlé Smithtown Enterprise Agreement 2019”. The Applicant has clarified that this was intended as a reference to the current Agreement, being the “Nestle Smithtown Enterprise Agreement 2022”.

The Applicant sought that I make a correction to the Agreement to address this error. I have considered this however, in Advantaged Care Pty Ltd v Health Services Union,[1] a Full Bench of the Commission considered the power in s.602 of the Act for the Commission to correct an error in relation to its decisions, finding it could not be exercised to correct an error in an enterprise agreement. While the decision dealt with s.602 of the Act and not s.586, having considered the principles in the Full Bench decision, I have decided not to correct the errors in the Agreement pursuant to s.586 of the Act in the manner sought by the Applicant. The Full Bench in Advantaged Care Pty Ltd v Health Services Union did however state:

“[47] Further, as the Deputy President observes, in circumstances of obvious error, defect or irregularity, the FW Act provides other means for rectification. Any ‘obvious error, defect or irregularity’ may be addressed by a variation of the agreement approved by a majority of the affected employees, in accordance with s.210 or by the Commission varying the agreement to remove an ambiguity or uncertainty, pursuant to s.217.”

A party is at liberty to apply for a variation pursuant to ss.210 or 217 of the Act, however I note that, for the purposes of this application, I am able to discern the intention of the clause, have considered where the term “Agreement” is referenced in the Agreement and am satisfied that the error does not impact my assessment of the Agreement.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

Pursuant to s.190(3) of the Act, I accept the Undertakings.

Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

The Australasian Meat Industry Employees Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 July 2022. The nominal expiry date of the Agreement is 29 April 2025.

COMMISSIONER

Annexure A

[1] [2021] FWCFB 453.

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission was presented with an application by Nestle Australia Ltd for the approval of the Nestle Smithtown Enterprise Agreement 2022. The agreement was to be assessed under section 185 of the Fair Work Act 2009. The dispute centred around a typographical error within clause 6.14 of the Agreement, where the term "Agreement" mistakenly referred to the "Nestlé Smithtown Enterprise Agreement 2019" instead of the intended "Nestle Smithtown Enterprise Agreement 2022". The Applicant sought a correction to this error.

The legal issue before the Commissioner was whether the Commission had the power to correct such an error in an enterprise agreement under section 586 of the Act. The Commissioner noted that a Full Bench of the Commission had previously ruled that section 602 of the Act could not be used to correct errors in an enterprise agreement. While the current matter involved section 586 of the Act, the Commissioner applied the principles from the Full Bench decision and determined against correcting the error as sought by the Applicant. The Commissioner did, however, highlight that other means of rectification were available under the Act, such as a variation of the agreement approved by a majority of the affected employees or by the Commission varying the agreement to remove an ambiguity or uncertainty.

The Commissioner concluded that the error in the Agreement did not impact the assessment of the Agreement and was satisfied that the intention of the clause was clear despite the typographical error. The Commissioner also accepted written undertakings from the Employer, noting that they would not cause financial detriment to any employee or result in substantial changes to the Agreement. Based on the materials before the Commission, the Commissioner was satisfied that all relevant requirements under sections 186, 187, 188, and 190 of the Act had been met. The Agreement was approved and would operate from 25 July 2022, with a nominal expiry date of 29 April 2025.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established