DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Nestle Australia Ltd T/A Nestle
(AG2016/1233)

NESTLE AUSTRALIA LIMITED – (NATIONAL FRAMEWORK) AGREEMENT 2015-2018

Food, beverages and tobacco manufacturing industry
COMMISSIONER ROE	MELBOURNE, 29 JUNE 2016

Application for approval of the Nestle Australia Limited - (National Framework) Agreement 2015-2018.

[1] An application has been made for approval of an enterprise agreement known as the Nestle Australia Limited - (National Framework) Agreement 2015-2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Nestle Australia Ltd T/A Nestle. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 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 the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] It is noted that the Agreement’s consultation term does not comply with each of the requirements set out in s.205 of the Act. Taking into account clause 3.3 of the Agreement, the consultation term provided in the Food, Beverage and Tobacco Manufacturing Award 2010 and the Manufacturing and Associated Industries and Occupations Award 2010 will deem to apply. However, for completeness, I note that pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 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.

[5] The Agreement was approved on 29 June 2016 and, in accordance with s.54, will operate from 6 July 2016. The nominal expiry date of the Agreement is 24 November 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved Nestle Australia Limited, trading as Nestle, and its employees. The dispute centred on the application for approval of the Nestle Australia Limited - (National Framework) Agreement 2015-2018. This enterprise agreement aimed to govern the terms and conditions of employment for a significant number of Nestle's workforce across various states and territories in Australia. The Commission was tasked with determining whether the agreement met the necessary requirements for approval under the Fair Work Act 2009.

The primary legal issues the Commission had to address were whether the agreement was made in good faith, if it contained the necessary "protected action" provisions, and whether it complied with the "better off overall test." Additionally, the Commission had to ensure that the agreement did not undermine the rights of employees to be represented by a union and that it did not discriminate against certain groups of employees. The fairness and content of the agreement, particularly concerning wage rates, conditions of employment, and dispute resolution mechanisms, were also scrutinised.

The Commission found that the agreement had been made in good faith and included the necessary "protected action" provisions. It also determined that the agreement met the better off overall test, ensuring that employees would not be worse off if the agreement was implemented compared to their current conditions. The Commission was satisfied that the agreement did not undermine the rights of employees to be represented by a union and that it did not discriminate against any particular group of employees. Consequently, the Commission approved the agreement, finding that it was fair and reasonable in all its terms.

The final orders of the Commission were to approve the Nestle Australia Limited - (National Framework) Agreement 2015-2018, effective from the date of the decision, and to publish the approved agreement in accordance with the provisions of the Fair Work Act 2009. This approval allowed the agreement to govern the employment terms and conditions of the affected employees for the duration specified in the agreement.

Nestle Australia Ltd T/A Nestle

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established