Nu-Mega Ingredients Pty Ltd

[2025] FWCA 2996

[2025] FWCA 2996

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Nu-Mega Ingredients Pty Ltd

(AG2025/2823)

NU-MEGA INGREDIENTS PTY LTD ENTERPRISE AGREEMENT 2025

Food, beverages and tobacco manufacturing industry
COMMISSIONER FOX	MELBOURNE, 4 SEPTEMBER 2025

Application for approval of the Nu-Mega Ingredients Pty Ltd Enterprise Agreement 2025.

1. An application has been made for approval of an enterprise agreement known as the Nu-Mega Ingredients Pty Ltd Enterprise Agreement 2025 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by Nu-Mega Ingredients Pty Ltd (the Employer). The Agreement is a single enterprise agreement.

1. I note that clause 1.1 of the Agreement contains a typographical error and that the reference to Nu-Mega Ingredients Pty Ltd Enterprise Agreement 2023 should instead be to Nu-Mega Ingredients Pty Ltd Enterprise Agreement 2025. I also note the following with respect to clause 8 of the Agreement:

• Clause 8.1 of the Agreement references clause 7.7 of the Agreement. There is no clause 7.7 of the Agreement. This should instead be a reference to clause 8.7 of the Agreement.

• Clause 8 concerns individual flexibility arrangements. This clause does not include that an IFA is to be made in order to meet the genuine needs of the employee and employer, pursuant to s.202(1)(a) of the Act.

1. The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers’ Union submitted that I should exercise my discretion pursuant to s.218A of the Act to amend the aforementioned clauses of the Agreement. I sought the views of the Employer, who advised that they would accept the Commission’s decision if I was to determine that s.218A is the appropriate course of action.

1. Section 218A allows the Commission to vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form). I note that previous Decisions[1] of the Commission outline the following line of reasoning when considering when s.218A can be exercised. Pursuant to s.12 of the Act, the reference to enterprise agreement is a reference to a single- or multi-enterprise agreement, and a single-enterprise agreement means an enterprise agreement as made pursuant to s.172(2) of the Act. As such, at this time, the Agreement is already an enterprise agreement prior to approval and therefore the power under s.218A of the Act can be enlivened. I adopt this reasoning.

1. I am satisfied that the aforementioned errors in clauses 1 and 8 of the Agreement are obvious errors and have determined to exercise my discretion under s.218A of the Act to amend the following clauses as specified:

1.    The reference at clause 1.1 of the Agreement to Nu-Mega Ingredients Pty Ltd Enterprise Agreement 2023 should instead be to Nu-Mega Ingredients Pty Ltd Enterprise Agreement 2025.

2.    The reference at clause 8.1 of the Agreement to clause 7.7 of the Agreement should instead be a reference to clause 8.7 of the Agreement.

3.    Clause 8.2.3 of the Agreement will include that an IFA must be made in order to meet the genuine needs of the employee and employer.

1. I am satisfied that each requirement of ss.186, 187 and 188 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s.193A(2)-(7).

1. I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES):

• Withholding of Monies on Termination: Clause 31.3 states that if an employee fails to give the required notice of termination to the employer, the employer may withhold any monies due to the employee on termination under this Agreement or the NES, to an amount not exceeding the amount of notice the employee would have been required to give, less the actual notice given by the employee.

• Compassionate Leave: Clause 26 of the Agreement of the Agreement does not say that employees may be eligible for Compassionate Leave after the stillbirth of a child of the employee or a member of the employee’s immediate family or household as per s.104(1)(b) of the Act or after the employee or the employee’s spouse or de facto partner has a miscarriage as per s.104(1)(c) of the Act.

1. However, noting clause 6.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

1. The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers’ Union being a bargaining representative for the Agreement supports the approval of the Agreement and has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act. I note that the Agreement covers the organisation.

1. The Agreement is approved, and in accordance with s.54 of the Act, will operate from 11 September 2025. The nominal expiry date of the Agreement is 30 June 2028.

COMMISSIONER

[1] Application by Con-Tec Pty. Ltd. Trading AS 010 179 432 [2025] FWCA 1539; Application by Diamantina Power Station Pty Ltd [2023] FWCA 2096.

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