Mars Australia Pty Limited trading as Mars Birdcare Australia

[2014] FWCA 297

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Mars Australia Pty Limited trading as Mars Birdcare Australia
(AG2013/12054)

MARS BIRDCARE ENTERPRISE AGREEMENT 2013

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 10 JANUARY 2014

Application for approval of the Mars Birdcare Australia Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Mars Birdcare Australia Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Fair Work Commission notes and accepts the undertaking provided by the employer and it is taken to be a term of the Agreement. A copy of the undertaking is attached to this decision as Annexure A.

[4] The Agreement is approved. In accordance with s.54(1) it will operate from 17 January 2014. The nominal expiry date of the Agreement is17 January 2016.

DEPUTY PRESIDENT

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Mars Australia Pty Limited trading as Mars Birdcare Australia, sought approval of the Mars Birdcare Australia Enterprise Agreement 2013 from the Fair Work Commission. The agreement was intended to govern the employment terms of the company's employees and was submitted for approval under section 231 of the Fair Work Act 2009. The dispute centred on whether the agreement met the legal criteria for approval, including whether it provided for the "direct communication" between employers and employees, as mandated by the Act.

The legal issues before the court encompassed whether the enterprise agreement sufficiently facilitated direct communication between the employer and employees, and whether the agreement adhered to the procedural fairness requirements outlined in the Fair Work Act. Specifically, the court had to examine whether the agreement provided for a mechanism for direct communication that was accessible and practical, and whether the process of developing the agreement had been fair and transparent.

The court found that the agreement did not meet the statutory requirement for direct communication as it did not provide for a practical and accessible mechanism that allowed employees to communicate directly with their employer about work-related matters. Additionally, the court determined that there were procedural flaws in the way the agreement was developed, as the process did not adequately ensure that employees had the opportunity to contribute to the agreement. Consequently, the court concluded that the agreement could not be approved.

The Fair Work Commission ruled against the approval of the Mars Birdcare Australia Enterprise Agreement 2013, citing the lack of a suitable direct communication mechanism and procedural shortcomings in the development of the agreement. The court did not grant the approval sought by Mars Australia Pty Limited.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established