Nestlé Australia Ltd

[2023] FWCA 3788

[2023] FWCA 3788

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Nestlé Australia Ltd

(AG2023/3800)

NESTLÉ AUSTRALIA LTD - SMITHTOWN (BOILERHOUSE) SITE AGREEMENT 2023

Food, beverages and tobacco manufacturing industry
COMMISSIONER MATHESON	SYDNEY, 13 NOVEMBER 2023

Application for approval of the Nestlé Australia Ltd - Smithtown (Boilerhouse) Site Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Nestlé Australia Ltd - Smithtown (Boilerhouse) Site Agreement 2023 (Agreement). The application was made by Nestlé Australia Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

1. Changes to the Act came into effect on 6 June 2023 in relation to genuine agreement. The Form F17A indicates that the notification time for the Agreement was 28 March 2023. In these circumstances and as a consequence of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act), clause 66 of Part 13 of Schedule 1 of the Act has the effect that despite the amendments made to the Act by Part 14 of Schedule 1 to the Amending Act, Part 2-4 of the Act continues to apply as if the amendments had not been made. The application has be assessed on this basis, taking into account the provisions of Part 2-4 of the Act in force in relation to genuine agreement immediately prior to 6 June 2023.

1. I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 3.3 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Applicant, who is also the employer covered by the Agreement, has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

1. Pursuant to s.190(3) of the Act, I accept the Undertakings.

1. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) (Regulations) is taken to be a term of the Agreement.

1. Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries’ Union” known as the Australian Manufacturing Workers’ Union (AMWU)” 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) of the Act, I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 November 2023. The nominal expiry date of the Agreement is 23 April 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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Annexure A