DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Mondelez Australia Pty Ltd T/A Mondelez/Cadbury
(AG2021/5178)

MONDELEZ AUSTRALIA PTY LTD RINGWOOD AND SCORESBY ELECTRICIANS CONFECTIONERY OPERATIONS VICTORIA AGREEMENT 2017

Manufacturing and associated industries
COMMISSIONER CIRKOVIC	MELBOURNE, 31 MAY 2021

Application for termination of the Mondelez Australia Pty Ltd Ringwood and Scoresby Electricians Confectionery Operations Victoria Agreement 2017.

[1] Mondelez Australia Pty Ltd T/A Mondelez/Cadbury (the Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (the Act), to terminate the Mondelez Australia Pty Ltd Ringwood and Scoresby Electricians Confectionery Operations Victoria Agreement 2017 (the Agreement). The Agreement has passed its nominal expiry date of 31 December 2020 and the Applicant is the employer covered by the Agreement.

[2] Section 225 of the Act provides as follows:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

[3] Section 225 of the Act provides as follows:

“226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

[4] The statutory declaration filed by the Applicant (signed 17 May 2021) declared that there are no employees still covered by the Agreement, or likely to be covered by the Agreement in the future.

[5] Pursuant to s.183 of the Act, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU/the Union) are covered by the Agreement.

[6] On 20 May 2021, my chambers emailed the CEPU seeking their views on the termination application and gave them until 25 May 2021 to respond. Chambers has not received any response to indicate that the CEPU have any issues they wish to raise.

[7] Based on the material contained in the statutory declaration of Mr Michael Asmar filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[8] The termination is effective from today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Mondelez Australia Pty Ltd, trading as Mondelez/Cadbury, applied to the Fair Work Commission for the termination of the Mondelez Australia Pty Ltd Ringwood and Scoresby Electricians Confectionery Operations Victoria Agreement 2017. The application was brought pursuant to section 240 of the Fair Work Act 2009. The application sought the termination of the agreement on the basis that the employer and the employees had reached an agreement to terminate the enterprise agreement, and that the agreement had expired.

The legal issues before the Commission were whether the agreement had been properly terminated in accordance with the Act, and whether the application was in the best interests of the employees. The Commission needed to determine if the process of termination was fair and whether the agreement had genuinely expired. The Commission also had to consider if the termination was in the best interests of the employees, and whether any alternative dispute resolution methods were available.

The Fair Work Commission found that the agreement had been properly terminated in accordance with the Fair Work Act 2009. The Commission determined that the process of termination was fair and that the agreement had genuinely expired. It was also found that the termination was in the best interests of the employees. The Commission concluded that there were no other avenues for dispute resolution that could be pursued. Therefore, the application for termination was approved.

The Fair Work Commission terminated the Mondelez Australia Pty Ltd Ringwood and Scoresby Electricians Confectionery Operations Victoria Agreement 2017, effective from the date of the Commission's decision. The termination was made on the basis that the employer and employees had reached an agreement to terminate the agreement and that the agreement had expired. The Commission's decision was based on the evidence presented and the legal requirements under the Fair Work Act 2009.

Mondelez Australia Pty Ltd T/A Mondelez/Cadbury

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established