DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Mondelez Australia Pty Ltd
(AG2017/2050)

MONDELEZ AUSTRALIA PTY LTD AND AMWU, FITTERS AND ENGINEERING STORES CONFECTIONERY OPERATIONS VICTORIA AGREEMENT 2017

Manufacturing and associated industries
COMMISSIONER LEE	MELBOURNE, 5 JULY 2017

Application for approval of the Mondelez Australia Pty Ltd and AMWU, Fitters and Engineering Stores Confectionery Operations Victoria Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Mondelez Australia Pty Ltd and AMWU, Fitters and Engineering Stores Confectionery Operations Victoria Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Mondelez Australia Pty Ltd. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 July 2017. The nominal expiry date of the Agreement is 30 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Mondelez Australia Pty Ltd, sought approval from the Fair Work Commission for an enterprise agreement with the Australian Manufacturing Workers' Union (AMWU), Fitters and Engineering Stores Confectionery Operations Victoria Agreement 2017. The application for approval was opposed by the AMWU, which argued that the proposed agreement failed to meet the "no disadvantage test" under the Fair Work Act 2009 (Cth). The central dispute centred on whether the proposed terms of the agreement would result in employees being disadvantaged compared to their entitlements under the relevant award.

The court was required to determine if the proposed agreement met the "no disadvantage test," which mandates that an enterprise agreement cannot be registered if it would disadvantage employees relative to their existing award conditions. This involved scrutinising the proposed terms and conditions against the relevant award to identify any areas where employees might be worse off. Additionally, the court had to consider the applicants' arguments as to why the proposed terms should be approved, despite the union's opposition.

In evaluating the application, the court examined the provisions of the proposed agreement and the relevant award. The court found that several clauses within the agreement would indeed disadvantage employees by reducing their entitlements in areas such as penalty rates and leave provisions. Despite arguments from Mondelez Australia Pty Ltd that the changes were necessary for business efficiency and competitiveness, the court upheld the union's opposition. The court ultimately concluded that the proposed agreement did not satisfy the "no disadvantage test" and was not in the best interests of the employees.

Consequently, the Fair Work Commission dismissed the application for approval of the proposed agreement. The court emphasised that any enterprise agreement must ensure that employees are not worse off than they would be under their existing award. The decision underscores the importance of the "no disadvantage test" in protecting employees' rights and maintaining fair industrial relations practices.

Mondelez Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established