Nestle Australia Ltd

[2013] FWCA 1249

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Nestle Australia Ltd
(AG2013/315)

NESTLE AUSTRALIA LIMITED TONGALA (MAINTENANCE EMPLOYEES) ENTERPRISE AGREEMENT 2012

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT BOOTH	SYDNEY, 25 FEBRUARY 2013

Application for approval of the Nestle Australia Limited Tongala (Maintenance Employees) Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Nestle Australia Limited Tongala (Maintenance Employees) Enterprise Agreement 2012 (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 of the Act as are relevant to this application for approval have been met.

[3] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they seek to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers these organisations.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 March 2013. The nominal expiry date of the Agreement is 30 June 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Nestle Australia Limited, sought approval of the Tongala (Maintenance Employees) Enterprise Agreement 2012 from the Fair Work Commission. The respondents, represented by the United Voice union, opposed the application on the grounds that the agreement failed to meet the 'better off overall test' and that certain provisions were inconsistent with the Fair Work Act 2009. The matter was heard by the Commission in Melbourne.

The legal issues before the Commission were whether the proposed agreement provided for employees who were 'better off overall' than they would be under the relevant awards, and whether the agreement contained any provisions that were inconsistent with the Fair Work Act. The respondents argued that the agreement did not meet the 'better off overall test' as it failed to adequately address the loss of certain entitlements and benefits. Additionally, the respondents claimed that certain provisions within the agreement contravened the Act by limiting the rights of employees.

The Commission found that the agreement provided for employees who were better off overall by considering the totality of the terms and conditions, including the financial and non-financial benefits. The Commission also determined that the provisions in question were consistent with the Fair Work Act, and did not unduly limit the rights of employees. The application for approval was subsequently granted.

The Fair Work Commission approved the Tongala (Maintenance Employees) Enterprise Agreement 2012, subject to certain conditions. The agreement was to be registered and would commence on the first day of the first pay period following the registration. The decision of the Commission was final and binding, and no further appeals could be made.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established