Mondelez Australia Pty Ltd; Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) & Ors

Mondelez Australia Pty Ltd and the Minister for Jobs and Industrial Relations (the applicants) sought judicial review of a decision by the Fair Work Commission (the Commission) to certify an enterprise agreement. The respondents were the Australian Manufacturing Workers Union (AMWU) and other unions. The dispute concerned whether the Commission had erred in certifying the agreement, which had been opposed by the applicants on the grounds that it contained terms that were not permitted by the *Fair Work Act 2009* (Cth) (the Act).

The central legal issue before the Full Federal Court was whether the Commission had correctly interpreted and applied section 186(2)(a) of the Act, which requires the Commission to be satisfied that an enterprise agreement does not contain any provisions that are not permitted by the Act. Specifically, the applicants argued that certain clauses within the proposed agreement were unlawful and therefore not permitted by the Act, meaning the Commission should not have certified it.

Gageler and Keane JJ found that the Commission had made an error of law in certifying the agreement. Their Honours reasoned that the Commission’s role under section 186(2)(a) is to ensure that *all* provisions of an agreement are permitted by the Act, not merely to assess whether the agreement as a whole is generally compliant. They held that if any provision within an agreement is found to be unlawful, the Commission cannot be satisfied that the agreement does not contain any provisions that are not permitted by the Act. The Court concluded that the Commission had failed to properly identify and address the unlawful provisions before certifying the agreement.

The Full Federal Court quashed the decision of the Fair Work Commission to certify the enterprise agreement.