“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Mondelez Australia Pty Ltd T/A Cadbury, Claremont

[2023] FWC 1019

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v

Mondelez Australia Pty Ltd T/A Cadbury, Claremont

(B2023/386)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 1 MAY 2023

Proposed protected action ballot of employees of Mondelez Australia Pty Ltd.

This is an application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Mondelez Australia Pty Ltd (Respondent).

On 1 May 2023, during a telephone mention, the Respondent advised that they did not object to the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Mr John Short of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

An order has been separately issued in PR761504.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought an order for a ballot of employees of Mondelez Australia Pty Ltd, trading as Cadbury Claremont, regarding proposed protected action. The application was made under section 437 of the Fair Work Act 2009 and concerned the employees' right to engage in protected industrial action. The dispute arose out of negotiations for a new enterprise agreement. On 1 May 2023, the Fair Work Commission considered the matter following a telephone mention where the respondent, Mondelez Australia Pty Ltd, indicated it had no objection to the AMWU's application.

The key legal issues before the Commission were whether the union had genuinely attempted to reach an agreement with the employer and whether the statutory notification period for the proposed agreement had been met. The AMWU was required to demonstrate that it had engaged in good faith bargaining and had exhausted all reasonable possibilities of reaching an agreement. Furthermore, the Commission had to ascertain if the union had adhered to the mandatory notification period stipulated in section 443(1) of the Fair Work Act.

The Deputy President, Clancy, reviewed the evidence presented by the AMWU, including the declaration of Mr. John Short, which detailed the union's bargaining efforts and its genuine attempts to reach an agreement with Mondelez Australia Pty Ltd. The evidence demonstrated that the AMWU had indeed made reasonable efforts to negotiate and that the mandatory notification period had been fulfilled. Given these findings, the Deputy President determined that the requirements for a ballot order under section 437 of the Fair Work Act had been satisfied. Consequently, the application for a ballot order was approved.

In summary, the Fair Work Commission granted the AMWU's application for a ballot of employees regarding proposed protected action. The decision was based on the union's evidence of good faith bargaining and compliance with the statutory notification period. The Commission issued an order permitting the ballot to proceed, as detailed in PR761504.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established