United Workers Union - [2022] FWC 754

[2022] FWC 754

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.217—Enterprise agreement

United Workers Union

(AG2022/360; AG2022/361; AG2022/362; AG2022/363; AG2022/364)

Nestle (Broadford) – United Workers Union Enterprise Agreement 2021

Nestle Australia Ltd – Northern Distribution Centre (NUW) Agreement 2019 – 2022

Nestle Australia Ltd - National Union of Workers - Merchandisers Enterprise Agreement 2018-2021

Nestle Australia Ltd (Uncle Tobys Wahgunyah) & United Workers' Union Agreement 2020

Nestle Purina Petcare, Blayney Enterprise Agreement 2021-2023

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 6 APRIL 2022

Application to vary enterprise agreements to remove ambiguity or uncertainty

The United Workers Union (UWU) has made applications under s 217 of the Fair Work Act 2009 (FW Act) to vary five enterprise agreements to remove ambiguity or uncertainty: the Nestle (Broadford) – United Workers Union Enterprise Agreement 2021 (Broadford Agreement); the Nestle Australia Ltd – Northern Distribution Centre (NUW) Agreement 2019 –2022 (NDC Agreement); the Nestle Australia Ltd – National Union of Workers – Merchandisers Enterprise Agreement 2018 – 2021 (Merchandisers Agreement); the Nestle Australia Ltd (Uncle Tobys Wahgunyah) & United Workers’ Union Agreement 2020 (Uncle Tobys Agreement); and the Nestle Purina Petcare, Blayney Enterprise Agreement 2021 – 2023 (Blayney Agreement) (collectively ‘the agreements’). Each agreement covers Nestle Australia Limited (Nestle), certain employees of Nestle, and the UWU.

The agreements contain various provisions pertaining to the obligations of Nestle to make superannuation contributions on behalf of the employees. These provisions identify the superannuation funds into which Nestle must make superannuation contributions on behalf of relevant employees, either at the election of an employee or, in the absence of any election, by default. Each agreement identifies the ‘Labour Union Co-Operative Retirement Fund’, or its acronym ‘LUCRF’, as a superannuation fund for these purposes. Clause 23 of the Broadford Agreement requires Nestle to make superannuation contributions either to LUCRF or the Nestle Division of the Russell SuperSolution Master Trust (Nestle Fund), the latter being the default fund. Clause 38.1 of the NDC Agreement requires Nestle to make contributions to a fund nominated by the employee and provides that the default funds are LUCRF and the Nestle Fund. Clause 21 of the Merchandisers Agreement requires Nestle to contribute either to LUCRF or the Nestle Fund in accordance with the election of a permanent employee, and to LUCRF for all casual employees. Clause 25 of the Uncle Tobys Agreement states that Nestle must make contributions into a fund chosen by an employee, and that LUCRF is the default fund. And clause 23 of the Blayney Agreement requires the company to make contributions to one of five funds chosen by an employee, one of which is LUCRF, and another of which is AustralianSuper.

The applications ask the Commission to vary the agreements to remove an ambiguity or uncertainty said to arise from the fact that LUCRF will merge with another superannuation fund, AustralianSuper, on 3 June 2022, with the consequence that it will no longer be possible for Nestle to make superannuation contributions to LUCRF. The UWU…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 754
Decision Date

CaseChat Overview and Summary

The United Workers Union (UWU) has applied to the Fair Work Commission under section 217 of the Fair Work Act 2009 to vary five enterprise agreements to remove ambiguity or uncertainty. The agreements in question cover various employees of Nestle Australia Limited (Nestle) and the UWU. The agreements contain provisions that require Nestle to make superannuation contributions to the Labour Union Co-Operative Retirement Fund (LUCRF), which will merge with AustralianSuper on 3 June 2022. The UWU contends that the presence of provisions requiring Nestle to make superannuation contributions to a fund that cannot receive contributions will create ambiguity or uncertainty. Nestle supports the UWU’s applications.

The legal issue before the Deputy President was whether the Fair Work Commission had the jurisdiction to vary the enterprise agreements under section 217 of the Fair Work Act to remove ambiguity or uncertainty. The Deputy President found that the relevant provisions of the agreements were not ambiguous but did create uncertainty. The Deputy President concluded that it was appropriate to exercise the discretion to vary the agreements to insert after references to LUCRF the words 'or any successor fund'. The Deputy President issued separate decisions varying each agreement.

In conclusion, the Fair Work Commission varied the five enterprise agreements to insert after references to LUCRF the words 'or any successor fund'. The Deputy President found that this variation would remove the uncertainty created by the merger of LUCRF with AustralianSuper. The Deputy President also found that the variation would not disadvantage employees and was consistent with the intention of the parties.

Orders