DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Nestle Australia Ltd t/a Nestle Australia
(AG2020/1454)

NESTLE AUSTRALIA LTD (TONGALA PLANT) AND UNITED WORKERS UNION ENTERPRISE AGREEMENT 2020 -2021

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 11 JUNE 2020

Application for approval of the Nestle Australia Ltd (Tongala Plant) and United Workers Union Enterprise Agreement 2020 -2021.

[1] Nestle Australia has applied for approval of a single enterprise agreement known as the Nestle Australia Ltd (Tongala Plant) and United Workers Union Enterprise Agreement 2020 -2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about the form of the application. Further information was provided in relation to these concerns.

[3] Noting clause 4 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[4] The statutory declaration filed with the application was not strictly compliant with the requirements of Rule 24 because it was in a form that had been superseded as at the time of filing. The Applicant sought the Commission to waive this irregularity with the form of the application. It also sought to correct two typographical errors in the original application, by filing two amended Agreement pages. The bargaining representative did not oppose the waiver or amendments. In the circumstances, I am satisfied that the waiver and amendments should be allowed and that it is appropriate to do so pursuant to s.586 of the Act.

[5] On the basis of the material contained in the amended application and further information provided on request of the Commission, 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.

[6] The United Workers' Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act and the signature requirement for that of the United Workers’ Union notice waived pursuant to Rule 6. In accordance with s.201(2), I note that the Agreement covers this organisation.

[7] The Agreement was approved on 11 June 2020 and, in accordance with s.54, will operate from 18 June 2020. The nominal expiry date of the Agreement is 31 December 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Nestle Australia Limited, trading as Nestle Australia, brought an application to the Fair Work Commission for the approval of the Nestle Australia Limited (Tongala Plant) and United Workers Union Enterprise Agreement 2020-2021. The union argued that the agreement contained fair terms and conditions of employment for its members, while Nestle sought to ensure that the agreement complied with the relevant legislative framework.

The court had to determine whether the terms of the enterprise agreement were fair and reasonable, and whether they complied with the provisions of the Fair Work Act 2009. The court also needed to consider whether the agreement met the "better off overall test", which requires that employees be no worse off financially under the new agreement than they would be under the previous agreement.

After reviewing the evidence and submissions from both parties, the Fair Work Commission found that the terms of the agreement were fair and reasonable, and that they complied with the relevant legislation. The court determined that the agreement met the "better off overall test", as employees would not be worse off financially under the new agreement. As a result, the Fair Work Commission approved the Nestle Australia Limited (Tongala Plant) and United Workers Union Enterprise Agreement 2020-2021.

Nestle Australia Ltd t/a Nestle Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established