Nestlé Australia Ltd T/A Nestlé Uncle Tobys

[2024] FWCA 977

[2024] FWCA 977

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Nestlé Australia Ltd T/A Nestlé Uncle Tobys

(AG2024/556)

NESTLE AUSTRALIA LTD (UNCLE TOBYS WAHGUNYAH) AUSTRALIAN MANUFACTURING WORKERS’ UNION COLLECTIVE AGREEMENT 2023

Food, beverages and tobacco manufacturing industry
COMMISSIONER CIRKOVIC	MELBOURNE, 19 MARCH 2024

Application for approval of the Nestle Australia Ltd (Uncle Tobys Wahgunyah) Australian Manufacturing Workers’ Union Collective Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Nestle Australia Ltd (Uncle Tobys Wahgunyah) Australian Manufacturing Workers’ Union Collective Agreement 2023 (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 T/A Nestlé Uncle Tobys (the Employer). The Agreement is a single enterprise agreement.

1. The notification time for the Agreement under s.173(2) was 23 May 2023 and the Agreement was made on 22 February 2024. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023.

1. I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. The Notice of Employee Representational Rights (NERR) was provided more than 14 days after the commencement of bargaining and was not in the prescribed form. The Employer provided submissions as to this error on 12 March 2024. I am satisfied having regard to those submissions and the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[1] (Huntsman) that this constitutes a minor technical or procedural error for the purposes of s 188(2)(a) of the Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

1. Accordingly, notwithstanding the matters identified in paragraph 3 above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

1. 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.

1. 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.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

1. The Agreement was approved on 19 March 2024 and, in accordance with s 54, will operate from 26 March 2024. The nominal expiry date of the Agreement is 30 June 2027.

COMMISSIONER

Annexure A

[1] [2019] FWCFB 318

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