Nestlé Australia Ltd T/A Nestle Australia

[2024] FWCA 4240

[2024] FWCA 4240

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Nestlé Australia Ltd T/A Nestle Australia

(AG2024/4364)

NESTLE AUSTRALIA LTD (ALTONA) & UNITED WORKERS UNION ENTERPRISE AGREEMENT 2024

Storage services
COMMISSIONER REDFORD	MELBOURNE, 2 DECEMBER 2024

Application for approval of the Nestle Australia Ltd (Altona) & United Workers Union Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Nestle Australia Ltd (Altona) & United Workers Union Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Nestlé Australia Ltd. The Agreement is a single enterprise agreement.

Procedural matters

1. While it is noted that the Notice of Employee Representational Rights was provided to employees after the time required by s 173(3) of the Act, I am satisfied that this is a minor or technical error and employees covered by the Agreement were not likely to have been disadvantaged by it. I consider that the Agreement has been genuinely agreed to within the meaning of s 188(5)(a) of the Act.

Undertakings

1. In response to several issues raised with the Employer in relation to its application, it has provided written undertakings, a copy of which are attached in Annexure A. 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 undertakings are taken to be a term of the agreement. The undertakings relate to: 

a.Minimum shift arrangements for part time employees; and

b.Entitlement to be paid overtime in respect to part time employees; and

c.The definition of “night shift”; and

d.Minimum engagement on Saturdays and Sundays.

Interaction with the National Employment Standards, the Award and mandatory clauses

1. Clause 4.4 of the Agreement provides that the National Employment Standards (NES) applies to employees covered by the agreement except where the agreement provides a more favourable outcome (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:

a.Clause 5B(2)(iv) of the Agreement appears to provide for casual conversion. The provisions do not appear to be consistent with s.66B of the Act. However, when read in conjunction with the NES precedence clause (clause 4.4) will have no effect to the extent of any inconsistency.

b.Clause 27 of the Agreement provides for compassionate leave, however it is silent in relation to the entitlement in circumstances when an employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. Section 104(1)(c) of the Act provides for compassionate leave in these circumstances. On the basis of the NES precedence clause, the superior entitlement provided for in the NES will apply.

1. It is noted that the agreement contains a workplace delegates rights term in accordance with s 205A, taking into account that the Agreement at clause 44.5 provides that it is to operate in conjunction with the relevant Award.

Consideration

1. 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.

1. The United Workers Union (UWU) 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) I note that the Agreement covers the UWU.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

COMMISSIONER

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ANNEXURE A