DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Nestlé Australia Ltd T/A Nestlé Australia
(AG2020/923)

NESTLE AUSTRALIA LIMITED TONGALA (MAINTENANCE EMPLOYEES) ENTERPRISE AGREEMENT 2019

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT YOUNG	MELBOURNE, 27 APRIL 2020

Application for approval of the Nestle Australia Limited Tongala (Maintenance Employees) Enterprise Agreement 2019.

[1] Nestlé Australia Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Nestle Australia Limited Tongala (Maintenance Employees) Enterprise Agreement 2019 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application, and the accompanying statutory declaration, 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.

[4] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the “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 seek to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declarations provided by the organisations, I note that the Agreement covers the organisations.

[5] I observe that clauses 33.3 and 33.4 of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6.6 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement was approved on 27 April 2020 and, in accordance with s 54, will operate from 4 May 2020. The nominal expiry date of the Agreement is 30 June 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Nestlé Australia Limited, trading as Nestlé Australia, and the Australian Manufacturing Workers’ Union. The dispute centred around the application for the approval of the Nestlé Australia Limited Tongala (Maintenance Employees) Enterprise Agreement 2019. The Fair Work Commission was tasked with determining whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The primary legal issues the Commission had to address were whether the agreement was a genuine enterprise agreement and whether it had been negotiated in good faith. Additionally, the Commission needed to assess if the agreement met the statutory minimum terms and conditions set out in the Fair Work Act. The Commission also considered whether the agreement had been appropriately certified by the Australian Bureau of Statistics as meeting the requirement of covering a majority of employees in the enterprise.

In reaching its decision, the Commission thoroughly examined the negotiation process and the contents of the agreement. The Commission found that the agreement had indeed been negotiated in good faith and that it was a genuine enterprise agreement. The agreement was also found to comply with the statutory minimum terms and conditions, and it had been appropriately certified. As a result, the Commission approved the enterprise agreement, recognising it as meeting the necessary legislative criteria.

As a consequence of the approval, the Nestlé Australia Limited Tongala (Maintenance Employees) Enterprise Agreement 2019 was now legally binding on the parties involved. This decision provided certainty and stability to the employment conditions of the maintenance employees at the Tongala site, ensuring they were covered by a recognised enterprise agreement. The final orders of the Commission were that the agreement be approved and registered, effective from the date of the decision.

Nestlé Australia Ltd T/A Nestlé Australia

DECISION

Annexure A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established