Nestlé Australia Ltd

[2013] FWCA 983

[2013] FWCA 983

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Nestlé Australia Ltd
(AG2012/13117)

NESTLÉ AUSTRALIA LTD. GYMPIE FACTORY COMPREHENSIVE AGREEMENT 2013

Manufacturing and associated industries
COMMISSIONER BULL	SYDNEY, 13 FEBRUARY 2013

Application for approval of the Nestlé Australia Ltd. Gympie Factory Comprehensive Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Nestlé Australia Ltd. Gympie Factory Comprehensive Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

Flexibility term

[2] The Commission questioned the operation of clause 3.3.3 - Flexible work arrangements of the Agreement as it did not appear to provide any further flexibility. The Applicant could not enlighten the Commission as to the flexibility provided and sought to provide an undertaking varying the clause or accept the model flexibility term. As the Act does not provide for undertakings to be sought on flexibility terms within enterprise agreements and pursuant to s.202(4) of the Act, the Model Flexibility Term, as found at Schedule 2.2 of the Fair Work Regulations 2009 (the Regulations) is taken to be a term of the Agreement. A copy of the model term is attached at Annexure A.

Consultation Term

[3] The Commission advised the Applicant that the consultation term found at clause 3.7.5 of the Agreement appears to be inconsistent with the terms that must be included pursuant to s.205(1) of the Act. The Applicant sought to provide an undertaking with respect to non-union representation. The Act does not provide for undertakings to be sought on consultation terms within enterprise agreements. Pursuant to s.205(2) of the Act, the Model Consultation Term, as found at Schedule 2.3 of the Regulations is taken to be a term of the Agreement. A copy of the model term is attached at Annexure B.

[4] The Agreement covers employees of Nestlé Australia employed at the Gympie Factory engaged to perform work covered by the Agreement with respect to production and maintenance work. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[5] I am satisfied that each of the requirements of ss.187 and 188 of the Act as are relevant to this application for approval have been met.

[6] The Australian Workers’ Union, 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 want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers these organisations.

[7] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 20 February 2013. The nominal expiry date of the Agreement is 31 December 2015.

COMMISSIONER

Annexure A

Annexure B

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