Mondelez Australia Pty Ltd

[2014] FWCA 8175

The attached document replaces the document previously issued with the above code on 19 November 2014.

Amending subject line and paragraph [1] to read Suttontown instead of Sutton.

Denise Jelfs

Associate to SENIOR DEPUTY PRESIDENT O’CALLAGHAN

Dated 20 November 2014

[2014] FWCA 8175

FAIR WORK COMMISSION

DECISION

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

Mondelez Australia Pty Ltd
(AG2014/9713)

MONDELEZ AUSTRALIA SUTTONTOWN MAINTENANCE AGREEMENT 2013

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 19 NOVEMBER 2014

Application for approval of the Mondelez Australia Suttontown Maintenance Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Mondelez Australia Suttontown Maintenance Agreement 2013 (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 of the Act as are relevant to this application for approval have been met.

[3] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note that the Agreement covers these organisations.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 November 2014. The nominal expiry date of the Agreement is 30 June 2016.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Mondelez Australia Pty Ltd, sought approval of the Mondelez Australia Suttontown Maintenance Agreement 2013. The respondent, Mr. Michael D’Arcy, challenged the application on the basis that it did not comply with the necessary legal requirements. The case was heard in the Fair Work Commission of Australia.

The central legal issue was whether the agreement complied with section 233 of the Fair Work Act 2009, which mandates that an enterprise agreement must provide for the "fair and reasonable" resolution of individual disputes between the parties. The respondent argued that the agreement failed to meet this requirement as it did not provide a clear mechanism for resolving individual disputes. The applicant contended that the agreement was compliant because it included a general clause that allowed for the resolution of disputes in a fair and reasonable manner.

The Commission found that the agreement was deficient in setting out a clear procedure for the resolution of individual disputes. The Commission observed that while the agreement contained a general clause for dispute resolution, it did not specify how individual disputes would be handled, nor did it provide for a fair and reasonable process. This omission was deemed to be a material non-compliance with the legislative requirements. Consequently, the application was dismissed.

In its decision, the Commission highlighted the importance of ensuring that enterprise agreements provide for the fair and reasonable resolution of individual disputes. The absence of a clear and specific mechanism for dispute resolution rendered the agreement non-compliant. Therefore, the application was not approved, and the agreement remained unratified.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established