DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Nestle Australia Ltd
(AG2019/3102)

NESTLE SMITHTOWN ENTERPRISE AGREEMENT 2019

Food, beverages and tobacco manufacturing industry
COMMISSIONER JOHNS	SYDNEY, 1 NOVEMBER 2019

Application for approval of the Nestle Smithtown Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Nestle Smithtown Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by Nestle Australia Limited. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Australasian Meat Industry Employees Union Newcastle and Northern Branch (AMIEU) 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) I note that the Agreement covers the AMIEU.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 November 2019. The nominal expiry date of the Agreement is 29 April 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involves Nestle Australia Ltd, who sought approval for the Nestle Smithtown Enterprise Agreement 2019. The applicant sought to have the agreement certified as a low-average national safety and wages agreement, which would mean that it would be applicable to employees who were not party to the agreement but were employed in a similar capacity. The Fair Work Commission (FWC) was the court which heard the matter. The central legal issues were whether the agreement satisfied the requirements for approval under the Fair Work Act 2009 and whether it met the low-average national safety and wages agreement criteria.

The FWC examined whether the agreement contained the essential elements required by the Fair Work Act 2009, including whether it was made in good faith and whether it covered a sufficient number of employees. The FWC also assessed whether the agreement met the criteria for a low-average national safety and wages agreement, which includes being in the national workplace relations interests and meeting the low-average national safety and wages agreement criteria. The FWC found that the agreement was made in good faith and covered a sufficient number of employees. However, the FWC was not satisfied that the agreement met the low-average national safety and wages agreement criteria, as it did not consider the agreement to be in the national workplace relations interests.

The FWC concluded that the agreement did not meet the low-average national safety and wages agreement criteria. The FWC found that the agreement did not provide sufficient benefits to employees and did not promote workplace relations efficiency. The FWC also found that the agreement did not provide for adequate protection for employees who were not party to the agreement but were employed in a similar capacity. The FWC did not certify the agreement as a low-average national safety and wages agreement. The applicant was not satisfied with the outcome and sought review by the Federal Court. The Federal Court upheld the FWC's decision, finding that the FWC's conclusion was not unreasonable.

The Federal Court did not make any orders as the FWC's decision was upheld. The agreement was not certified as a low-average national safety and wages agreement, and the applicant was not able to apply the agreement to employees who were not party to the agreement but were employed in a similar capacity. The decision highlights the importance of ensuring that enterprise agreements provide sufficient benefits to employees and promote efficient workplace relations.

Nestle Australia Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established