Application for approval of the Nestle Australia Ltd. Gympie Factory Comprehensive Agreement 2025

[1] Nestlé Australia Ltd ("the Employer") has applied for approval of an enterprise agreement known as the Nestle Australia Ltd. Gympie Factory Comprehensive Agreement 2025 ("the Agreement"). The Application was made under s.185 of the Fair Work Act 2009 ("the Fair Work Act"). The Agreement is a single enterprise agreement.

[2] A party's application for the Commission's approval of an enterprise agreement must be accompanied by a signed copy of that agreement.[1] A copy of an enterprise agreement is a signed copy only if it is signed by the employer covered by the agreement and at least 1 representative of the employees covered by the agreement, and it includes each signatory's full name and address, and an explanation of their authority to sign.[2]

[3] In this case there were three signatories, one for the Employer, one for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU), and one for The Australian Workers' Union (the AWU). The signature pages were provided in counterparts, and each union signatory was described as signing for and on behalf of their respective union. I take those counterparts to be part of the Agreement filed for approval.

[4] It is arguable that the Agreement has not been signed as required under section 185(2)(a) of the Fair Work Act when read with Regulation 2.06A of the Fair Work Regulations 2009 (Cth) ("the Regulations"), because the signatories do not state that they are authorised to sign because their union is a bargaining representative,[3] and no other employee representative signed the Agreement. Having regard to the filed materials it is not in dispute, and there is no doubt, that each of those two unions was a bargaining representative. In an abundance of caution, and to the extent necessary to do so:, I exercise the power in section 586 of the Fair Work Act,[4] under paragraph (a) and/or paragraph (b) of that section, to correct any error in the application, and/or waive any irregularity in the form or manner in which it has been made, arising out of the AWU or the CEPU's signatories' explanation of their authority to sign the Agreement.

[5] The Agreement as filed contained an obvious typographical error in clause 13.2 of Appendix 1, relating to references to other provisions of the Agreement. The AMWU submitted this obvious typographical error should be corrected. The Employer agreed and sought to deal with this error by filing a corrected copy of page 65 of the Agreement, and seeking that the error be corrected by variation in reliance on section 218A of the Fair Work Act. Section 218A provides for variation of enterprise agreements to correct or amend errors, defects or irregularities.

[6] In my view the power under section 218A of the Fair Work Act be exercised at the time of approving an enterprise agreement under section 185. The power allows the Commission to vary "an enterprise agreement" to correct or amend an obvious error, defect or irregularity (whether in substance or form).[5] "Enterprise agreement" means a single-enterprise agreement or a multi-enterprise agreement.[6] "Single-enterprise agreement" means an enterprise agreement made as referred to in subsection 172(2) of the Fair Work Act.[7] Section 185 of the Fair Work Act provides for approval of an enterprise agreement once it has been made. Accordingly, the Agreement is already an "enterprise agreement" at the time that approval is being considered, so the power under sections 217 and 218A to vary an enterprise agreement can be exercised at the time of that approval. The power to vary an enterprise agreement under section 217 has previously been exercised at the time of the approval of an enterprise agreement.[8]

[7] I am satisfied that the correction should be made and that it is appropriate to do so pursuant to section 218A of the Fair Work Act. The corrections to clause 13.2 of Appendix 1 to the Agreement is made in accordance with the amended copy of page 65 of the Agreement filed by the Employer on 15 April 2015.

[8] The Agreement does not contain a flexibility term compliant with the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[9] The Agreement is silent as to some delegates' rights provided in the relevant Award. The AMWU submitted that because clause 3.10 expressly contemplates that where there is an inconsistency between the Agreement and Award terms, the more beneficial Award term would apply, the delegates' rights provisions of the Agreement could not be less favourable than those in the Award, and section 205A(2) is not enlivened. The employer made a submission to the same effect. I accept the parties' submissions.

[10] The Employer has given written undertakings in accordance with section 190 of the Act. The undertakings are attached as Annexure A to this decision. I am satisfied that the undertakings are not likely to cause financial detriment to any employee covered by the Agreement and do not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[11] With the undertakings now given, and after having regard to the Statement of Principles as well as the application and declarations filed in this matter, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

[12] Noting the undertakings provided, 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.

[13] Each of the following organisations, being a bargaining representative for the agreement, has given notice under s 183 of the Act that it wants to be covered by the Agreement:

(b) Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

[14] In accordance with section 201(2) of the Fair Work Act, and relying on the organisations' declarations, I note that the Agreement covers each of those organisations.

[15] The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 31 December 2027.

[1] Fair Work Act 2009 s 185(2)(a).

[2] Fair Work Act 2009 s 185(5) and Fair Work Regulations 2009 (Cth) r 2.06A.

[3] CFMMEU v Griffiths Cranes Pty Ltd [2019] FWCFB 1717 (McKenna C, [122]-[123]).

[4] See Australian Nursing and Midwifery Federation v Uniting Church in Australia Property Trust (Q.) [2020] FWCFB 848, [128]-[129], applying CFMMEU v Griffiths Cranes Pty Ltd [2019] FWCFB 1717, [40]-[46].

[5] Fair Work Act 2009 (Cth) subs 218A(1).

[6] Fair Work Act 2009 (Cth) s 12.

[7] Fair Work Act 2009 (Cth) s 12.

[8] The State of Victoria [2020] FWCA 5215.

Printed by authority of the Commonwealth Government Printer