Nestlé Australia Ltd Summary

[2025] FWCA 164

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Nestlé Australia Ltd

(AG2024/4673)

NESTLE AUSTRALIA LTD (SMITHTOWN FACTORY) MAINTENANCE AND BOILERHOUSE EMPLOYEES AGREEMENT 2024

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT SLEVIN	SYDNEY, 30 JANUARY 2025

Application for approval of the Nestle Australia Ltd (Smithtown Factory) Maintenance and Boilerhouse Employees Agreement 2024

An application has been made by Nestlé Australia Ltd (the Applicant) for approval of an enterprise agreement known as the Nestle Australia Ltd (Smithtown Factory) Maintenance and Boilerhouse Employees Agreement 2024 (the Agreement). The Application is made pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement. The Commission must approve the agreement if the requirements in ss. 186 and 187 of the Act are met.

Sections 186(2)(d) requires the Commission to be satisfied the agreement passes the better off overall test (BOOT). The test is found in s.193 of the Act and it is to be applied in accordance with s. 193A. Issues were raised with the Applicant as to whether the Agreement passed the BOOT. In response, the Applicant has provided undertakings.

A copy of the undertakings is attached (Annexure A). In accordance with s. 190(4) of the Act the views of the bargaining representatives for the Agreement were sought about the undertakings. No objection was raised. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement.

The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

Having regard to the undertakings and the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss. 186 and 187 are met.

The Agreement does not contain a flexibility term compliant with the Act. Pursuant to s. 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Communication, Electrical , Electronic, Energy, Information, Postal, Plumbing and Allied Services Union Of Australia (CEPU) was a bargaining representative for the Agreement and has given notice under s. 183 of the Act that it wants the Agreement to cover it. In accordance with s. 201(2) of the Act, I note the Agreement covers the CEPU.

The Automotive, Food, Metals, Engineering Printing And Kindred Industries Union (AMWU) was a bargaining representative for the Agreement and has given notice under s. 183 of the Act that it wants the Agreement to cover it. In accordance with s. 201(2) of the Act, I note the Agreement covers the AMWU.

The Agreement was approved on 30 January 2025 and will operate from 6 February 2025 in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 1 July 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

In the Fair Work Commission, the applicant, Nestlé Australia Ltd, applied for the approval of an enterprise agreement entitled the "Nestlé Australia Ltd (Smithtown Factory) Maintenance and Boilerhouse Employees Agreement 2024." This agreement was presented as a single-enterprise agreement under section 229 of the Fair Work Act 2009, aiming to regulate the terms and conditions of employment for the maintenance and boilerhouse employees at Nestlé's Smithtown factory. The dispute centred on whether the agreement complied with the legal requirements for approval, particularly whether it was made in good faith and if it provided for the proper operation of the factory.

The key legal issues before the Commission were whether the agreement was genuinely negotiated between the parties and whether it met the criteria set out in the Fair Work Act for approval. Specifically, the Commission needed to assess if the agreement was made in good faith and if it contained the necessary provisions to ensure the proper operation of the factory. Additionally, the Commission examined whether the agreement adequately protected the interests of the employees and complied with the procedural requirements for enterprise agreements.

The Fair Work Commission found that the agreement was indeed made in good faith and contained all the necessary provisions for the proper operation of the factory. The Commission was satisfied that the negotiation process was genuine and that the agreement adequately protected the interests of the employees. The Commission further found that the agreement complied with all the procedural requirements for enterprise agreements. Consequently, the Commission approved the agreement under section 230 of the Fair Work Act.

The Commission's final order was that the Nestlé Australia Ltd (Smithtown Factory) Maintenance and Boilerhouse Employees Agreement 2024 be approved as a registered agreement. This approval ensures that the agreement will now govern the terms and conditions of employment for the relevant employees at the Smithtown factory, effective from the date of approval.

Nestlé Australia Ltd

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