Nestle Australia Ltd T/A Nestle
[2022] FWCA 1871
•8 JUNE 2022
| [2022] FWCA 1871 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Nestle Australia Ltd T/A Nestle
(AG2022/1592)
Nestlé Australia Ltd. Gympie Factory Comprehensive Agreement 2022
| Food, beverages and tobacco manufacturing industry | |
| COMMISSIONER HUNT | BRISBANE, 8 JUNE 2022 |
Application for approval of the Nestlé Australia Ltd. Gympie Factory Comprehensive Agreement 2022
Nestle Australia Ltd T/A Nestle (the Employer) has applied for approval of an enterprise agreement known as the Nestlé Australia Ltd. Gympie Factory Comprehensive Agreement 2022 (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.
The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the bargaining representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. No views were received.
I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The effect of the undertaking regarding withholding of monies on termination is that the employer may only withhold wages and not withhold from other entitlements such as annual leave or long service leave.
Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.
I have taken into consideration the material filed in the Commission.
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.
It is noted, however, that clause 3.6.2 of the Agreement, which covers superannuation arrangements, appears to provide for new employees being able to elect a Choice of Fund, but current employees may only elect Choice of Fund on 1 January each year. Section 32F(1)(a) of the Superannuation Guarantee (Administration) Act 1992 allows an employee to provide written notice to the employer and s.32F(2) states that fund becomes a chosen fund for the employee 2 months after. Therefore, it appears that the Agreement is far more restrictive for an employee who wants to elect Choice of Fund at some stage throughout the year.
The Australian Workers’ Union (AWU), the Electrical, Energy and Services Division of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries”, known as the Australian Manufacturing Workers’ Union (AMWU) being bargaining representatives 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 AWU, ETU and AMWU.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 June 2022. The nominal expiry date of the Agreement is 31 December 2024.
COMMISSIONER
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Annexure A – Undertakings
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