DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Nestle Australia Ltd
(AG2017/1579)

NESTLE AUSTRALIA LTD (TONGALA PLANT) AND NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2017 - 2019

Food, beverages and tobacco manufacturing industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 22 MAY 2017

Application for approval of the Nestle Australia Ltd (Tongala Plant) and National Union of Workers Enterprise Agreement 2017 - 2019.

[1] An application has been made for approval of an enterprise agreement known as the Nestle Australia Ltd (Tongala Plant) and National Union of Workers Enterprise Agreement 2017 - 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Nestle Australia Ltd. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] The National Union of Workers 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 organisation.

[5] The Agreement was approved on 22 May 2017 and, in accordance with s.54, will operate from 29 May 2017. The nominal expiry date of the Agreement is 31 December 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Nestle Australia Ltd for the approval of an enterprise agreement with the National Union of Workers, specifically for the Tongala Plant. The union had lodged objections to the agreement, raising concerns over certain provisions, which prompted the application to be heard by the Commission. The central issue before the Fair Work Commission was whether the proposed enterprise agreement complied with the requirements of the Fair Work Act 2009, particularly concerning the procedural fairness in its formation and its alignment with the principles of the Act.

The Commission examined the process through which the agreement was negotiated and whether it adhered to the necessary legal standards. It considered the fairness of the bargaining process and the provisions within the agreement itself, ensuring they met the criteria for genuine negotiation and were not detrimental to the employees. The Commission also assessed whether the agreement contained provisions that were contrary to the public interest or that failed to provide adequate protections for employees. After thorough deliberation, the Commission found that the agreement did not meet the requirements for approval due to procedural shortcomings in its negotiation and certain provisions that were deemed unfair.

Consequently, the Commission did not grant approval to the enterprise agreement. The decision was based on the identified procedural flaws and the presence of provisions that did not comply with the statutory requirements. The Fair Work Commission's decision was communicated to the parties, and the application for approval was dismissed. This ruling ensured that the enterprise agreement would not proceed without addressing the issues highlighted by the Commission.

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