Rhodes T/A Uncle Tobys

[2024] FWCA 2292

[2024] FWCA 2292

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Rhodes T/A Uncle Tobys

(AG2024/2015)

NESTLE AUSTRALIA LTD (UNCLE TOBYS WAHGUNYAH) & UNITED WORKERS' UNION AGREEMENT 2024

Food, beverages and tobacco manufacturing industry
COMMISSIONER TRAN	MELBOURNE, 21 JUNE 2024

Application for approval of the Nestle Australia Ltd (Uncle Tobys Wahgunyah) & United Workers' Union Agreement 2024

1. Rhodes T/A Uncle Tobys has applied for approval of an enterprise agreement known as the Nestle Australia Ltd (Uncle Tobys Wahgunyah) & United Workers’ Union Agreement 2024 (the Agreement) under s 185 of the Fair Work Act 2009 (Act).

1. The Agreement is a single enterprise agreement.

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

• Clause 20.2.2 – Notice of Termination by Employees may be inconsistent with s 324 of the Act and unenforceable under s 326;

• Clause 20.5.1 – Summary Dismissal may be inconsistent with s 123(1)(b) as it provides for a broader range of circumstances that the employer can rely upon to summarily dismiss an employee than under the Act;

• Clause 39.2 – Compassionate Leave does not provide for circumstances relating to stillbirth or miscarriage as required by s 104(1)(c); and

• Clause 44.1.2 – Public Holidays is more restrictive than s 115(3) of the Act which provides for agreement between individual employees and the employer when substituting public holidays.

1. The Agreement contains an effective NES precedence clause at Clause 11.1 of the Agreement, and I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. Section 218A of the Act allows the Commission to correct or amend obvious errors, defects or irregularities. It is a discretionary power, and the Commission first be satisfied that the identified errors or amendments sought are obvious errors, defects or irregularities.

1. I determined to vary the Agreement on my own initiative, following the identification of a typographical error in Clause 18.4 where Clause 29 was referenced instead of Clause 28. I also sought a clearer image of the wage rates in Schedule B and was provided this. My chambers made the amendment to Clause 18.4 and inserted the clearer wage rates into the Agreement.

1. I am satisfied that the amendments should be made and that it is appropriate to do so in accordance with s 218A. The variation will operate from the date the Agreement commences.

1. Taking into account the above matters, 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.

1. The United Workers’ Union, 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 organisation.

1. The Agreement is approved and, in accordance with s 54 of the Act and despite Clause 7 of the Agreement, will operate from 28 June 2024.

1. In accordance with Clause 7, the nominal expiry date of the Agreement is 31 December 2026.

COMMISSIONER

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