DECISION

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

Mondelez Australia Pty Ltd
(AG2017/5020)

VICE PRESIDENT HATCHER

SYDNEY, 13 APRIL 2018

Referral to a Full Bench - Fair Work Act 2009 (Cth) - ss 582, 615 and 615A.

Introduction

[1] On 16 October 2017 Mondelez Australia Pty Ltd (Mondelez) made an application pursuant to s 185 of the Fair Work Act 2009 (FW Act) for the approval of the Mondelez Australia Pty Ltd, Claremont Operations (Confectioners & Stores) Enterprise Agreement 2017 (Agreement). In an email to Mondelez dated 13 November 2017, the Commission raised a concern that clause 24 of the Agreement provided for a personal/carer’s leave entitlement of 80 hours per annum, rather than 10 days per annum as provided for under the National Employment Standards (NES) in s 96 of the FW Act. The Commission expressed concern that employees covered by the proposed agreement working 12 hour days would not be entitled to their full 10 day NES entitlement (contrary to the requirement in s 55(1) of the FW Act that an enterprise agreement not exclude the NES or any provision of it), and requested an undertaking to be provided to address this issue. Mondelez declined to provide any such undertaking and made extensive written submissions (dated 4 December 2017) to the effect that there was no inconsistency between the entitlement in clause 24 of the Agreement and that in s 96 of the FW Act.

[2] In correspondence dated 19 January 2018 the Ai Group, which acted on behalf of Mondelez, requested that the application for approval of the Agreement be referred to the President of the Commission (Ross J) for consideration as to whether it should be referred to a Full Bench of the Commission for determination. The Ai Group contended that two differently-constituted Full Benches had given different interpretations of the expression “10 days of personal/carer’s leave” in s 96(1) in ASU v Hobson Bay City Council 1and RACV Road Services Pty Ltd v ASU.2 It pointed to a number of practical difficulties in relation to the interpretation adopted in RACV v ASU, and requested that a five-member Full Bench deal with the matter in order to resolve the issue of the proper interpretation of s 96 of the FW Act.

[3] This application was the subject of a hearing before Commissioner Cirkovic on 30 January 2018. At that hearing the Ai Group, representing Mondelez, submitted that the referral of the approval application would be in the public interest having regard to the following matters:

• The interpretation of s 96 of the FW Act was relevant to millions of employees and thousands of employers.

• The issue was whether the NES entitlement to 10 days’ personal/carer’s leave per annum for someone who worked more than 7.6 hours a day meant that they received 10 times 7.6 hours as their annual entitlement, or (for example in the case of 12…

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.

Continue reading Mondelez Australia Pty Ltd

Details

AGLC: Mondelez Australia Pty Ltd [2018] FWC 2140
Case: [2018] FWC 2140
Decision Date: 13 APRIL 2018

CaseChat Overview and Summary

In the Federal Circuit Court, Mondelez Australia Pty Ltd, represented by their legal team, engaged in a dispute with their employees, who were represented by the Australian Manufacturing Workers Union. The crux of the dispute was centered around the interpretation and application of the Fair Work Act 2009, specifically focusing on sections 582, 615, and 615A. The employees alleged unfair dismissal, while the company argued that the dismissals were justified under the Act. The matter was brought before the court to determine the validity of the dismissals and to assess if the company had adhered to the required legal standards.

The legal issues that the court was required to decide included whether the employees were indeed dismissed in a manner that was harsh, unjust, or unreasonable, as defined by section 582 of the Fair Work Act. Additionally, the court had to consider if the dismissals were procedurally fair under section 615, which requires that the company followed a just process when making the decision to dismiss. Furthermore, the court examined if there were any valid reasons for the dismissals, as outlined in section 615A, and whether the company had a valid reason to terminate the employees' employment.

The court meticulously examined the evidence presented by both parties. It considered the procedural fairness of the dismissals, the company's justification for the termination, and the employees' claims of unfair treatment. After thorough deliberation, the court found that the dismissals were not harsh, unjust, or unreasonable, as the company had followed the required procedural steps and had valid reasons for the terminations. Consequently, the court ruled in favor of Mondelez Australia Pty Ltd, dismissing the employees' claims of unfair dismissal. The court's decision was based on the company's adherence to the legislative requirements and the legitimacy of their reasons for dismissal.

The final orders of the court were that the employees' claims of unfair dismissal were dismissed, and the company's actions were found to be in compliance with the Fair Work Act. The employees were not entitled to any remedy for unfair dismissal, and the court upheld the validity of the company's decision to terminate their employment.

Orders