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

The High Court of Australia considered an appeal concerning the interpretation of section 50 of the *Fair Work Act 2009* (Cth) (the Act) in a dispute between Mondelez Australia Pty Ltd and the Minister for Jobs and Industrial Relations (the applicants) and the Australian Manufacturing Workers Union (AMWU) and other unions (the respondents). The core of the dispute involved whether certain enterprise agreements, which included provisions for the payment of redundancy pay to employees who were made redundant, were nonetheless invalid under section 50 of the Act because they did not provide for redundancy pay in all circumstances where an employee might be made redundant.

The primary legal issue before the High Court was whether section 50 of the Act, which requires that an enterprise agreement must not contain terms that contravene a provision of a prescribed industrial instrument, rendered the agreements invalid. Specifically, the applicants argued that the agreements were invalid because they did not provide for redundancy pay in circumstances where an employee's employment was terminated due to the employee's serious misconduct or redundancy arising from the employee's own wilful or negligent act. This, they contended, meant the agreements did not comply with the National Employment Standards (NES) as incorporated by reference into the relevant award, which mandates redundancy pay unless termination is for "serious misconduct".

The High Court, by majority, held that the enterprise agreements were not invalid under section 50 of the Act. The Court reasoned that section 50 operates to invalidate agreements only where they contain terms that *contravene* a provision of a prescribed industrial instrument. In this instance, the agreements did not contain terms that *positively* contravened the NES. Rather, the absence of a provision for redundancy pay in specific circumstances (serious misconduct or wilful/negligent redundancy) did not, in itself, constitute a contravention of the NES. The NES, as incorporated, stipulated redundancy pay unless termination was for serious misconduct, and the agreements did not purport to permit termination for serious misconduct without redundancy pay; they simply did not provide for redundancy pay in such a scenario, which was consistent with the NES. The Court emphasised that the agreements did not seek to contract out of the NES or provide for less than what the NES required.

Consequently, the High Court dismissed the appeal, upholding the validity of the enterprise agreements.