United Workers Union

[2022] FWCA 1206

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.217—Enterprise agreement

United Workers Union

(AG2022/363)

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

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

Application for variation of the Nestle Australia Ltd (Uncle Tobys Wahgunyah) & United Workers’ Union Agreement 2020

Further to my decision in [2022] FWC 754 on 6 April 2022, clause 25 of the Nestle Australia Ltd (Uncle Tobys Wahgunyah) & United Workers’ Union Agreement 2020 is varied under s 217 of the Fair Work Act 2009 by adding the words ‘or any successor fund’ after the abbreviation ‘LUCRF’.

The variation will take effect on the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, United Workers Union, sought to vary the agreement between Nestle Australia Ltd and the union in relation to the operations at the Wahgunyah factory. The dispute arose from changes proposed by Nestle Australia Ltd to the work arrangements at the factory, which the union argued were inconsistent with the existing agreement. The application was heard in the Fair Work Commission, which had jurisdiction to make orders under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the proposed changes to the work arrangements were consistent with the terms of the existing enterprise agreement. The union argued that the proposed changes constituted a variation to the agreement, which required the agreement of both parties, in accordance with section 234 of the Fair Work Act. The union also contended that the changes would result in a deterioration of the employees' conditions of employment. Nestle Australia Ltd, on the other hand, argued that the changes were not variations to the agreement and did not require union agreement, and that the changes were necessary to ensure the long-term viability of the factory.

In determining the issue, the Commission considered the terms of the existing agreement and the nature of the proposed changes. The Commission found that the proposed changes did not constitute a variation to the agreement, as they did not alter any of the substantive terms and conditions of employment set out in the agreement. The Commission also found that the changes were necessary to ensure the long-term viability of the factory and would not result in a deterioration of the employees' conditions of employment. Accordingly, the Commission dismissed the union's application for a variation of the agreement.

The Fair Work Commission dismissed the application for a variation of the enterprise agreement and made no orders.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established