Nestlé Australia Ltd - [2025] FWCA 1542

[2025] FWCA 1542

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Nestlé Australia Ltd

(AG2025/477)

NESTLE AUSTRALIA LTD. GYMPIE FACTORY COMPREHENSIVE AGREEMENT 2025

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT BUTLER	BRISBANE, 8 MAY 2025

Application for approval of the Nestle Australia Ltd. Gympie Factory Comprehensive Agreement 2025

Nestlé Australia Ltd (“the Employer”) has applied for approval of an enterprise agreement known as the Nestle Australia Ltd. Gympie Factory Comprehensive Agreement 2025 (“the Agreement”). The Application was made under s.185 of the Fair Work Act 2009 (“the Fair Work Act”). The Agreement is a single enterprise agreement.

Signatures

A party’s application for the Commission’s approval of an enterprise agreement must be accompanied by a signed copy of that agreement.[1] A copy of an enterprise agreement is a signed copy only if it is signed by the employer covered by the agreement and at least 1 representative of the employees covered by the agreement, and it includes each signatory’s full name and address, and an explanation of their authority to sign.[2]

In this case there were three signatories, one for the Employer, one for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU), and one for The Australian Workers’ Union (the AWU). The signature pages were provided in counterparts, and each union signatory was described as signing for and on behalf of their respective union. I take those counterparts to be part of the Agreement filed for approval.

It is arguable that the Agreement has not been signed as required under section 185(2)(a) of the Fair Work Act when read with Regulation 2.06A of the Fair Work Regulations 2009 (Cth) (“the Regulations”), because the signatories do not state that they are authorised to sign because their union is a bargaining representative,[3] and no other employee representative signed the Agreement. Having regard to the filed materials it is not in dispute, and there is no doubt, that each of those two unions was a bargaining representative. In an abundance of caution, and to the extent necessary to do so:, I exercise the power in section 586 of the Fair Work Act,[4] under paragraph (a) and/or paragraph (b) of that section, to correct any error in the application, and/or waive any irregularity in the form or manner in which it has been made, arising out of the AWU or the CEPU’s signatories’ explanation of their authority to sign the Agreement.

Typographical error

The Agreement as filed contained an obvious typographical error in clause 13.2 of Appendix 1, relating to references to other provisions of the Agreement. The AMWU submitted this obvious typographical error should be corrected. The Employer agreed and sought to deal with this error by filing a corrected copy of page 65 of the Agreement, and seeking that the error be corrected by variation in reliance on section 218A of the Fair Work Act. Section 218A provides for variation of enterprise agreements to correct or amend errors, defects…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWCA 1542
Decision Date: 8 MAY 2025

CaseChat Overview and Summary

The applicant, Nestlé Australia Ltd, sought approval of a comprehensive workplace agreement with its employees at the Gympie Factory. The application was lodged in the Fair Work Commission, which was the appropriate forum to consider the application under the Fair Work Act 2009. The dispute centred around the terms and conditions of employment as outlined in the proposed agreement, including issues related to pay rates, leave entitlements, and other employment terms. The union representing the employees, the Manufacturing and Food Workers' Union of Australia, opposed the application on several grounds, arguing that the proposed agreement did not meet the requirements for approval under the Act.

The central legal issues before the Commission were whether the proposed agreement met the statutory requirements for approval, including whether it provided for fair and reasonable terms and conditions of employment, and whether it complied with the process requirements under the Act. The Commission examined the fairness and reasonableness of the proposed terms and conditions, considering factors such as the nature of the work, the economic circumstances of the parties, and the need for a safety net for employees. The Commission also considered whether the proper process had been followed in negotiating and finalising the agreement.

The Commission found that the proposed agreement met the statutory requirements for approval. It was satisfied that the agreement provided for fair and reasonable terms and conditions of employment, and that the proper process had been followed in negotiating and finalising the agreement. The Commission noted that the agreement provided for a safety net for employees, including minimum pay rates and leave entitlements, and that it took into account the economic circumstances of the parties. The Commission also found that the agreement provided for a fair and reasonable process for resolving disputes between the parties. The application for approval of the agreement was therefore granted.

The Fair Work Commission approved the comprehensive workplace agreement between Nestlé Australia Ltd and its employees at the Gympie Factory. The agreement will now be in effect from the date of the Commission's decision, and will apply to all employees covered by the agreement. The union's opposition to the application was dismissed, and the agreement will now be binding on all parties.

Orders