Mondelez Australia Pty Ltd Trading AS Mondelez International Summary

[2025] FWCA 937

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Mondelez Australia Pty Ltd Trading AS Mondelez International

(AG2025/432)

MONDELEZ AUSTRALIA PTY LTD, NORTH WEST OPERATIONS ENTERPRISE AGREEMENT 2025

Food, beverages and tobacco manufacturing industry
COMMISSIONER FOX	MELBOURNE, 18 MARCH 2025

Application for approval of the Mondelez Australia Pty Ltd, North West Operations Enterprise Agreement 2025.

An application has been made for approval of an enterprise agreement known as the Mondelez Australia Pty Ltd, North West Operations Enterprise Agreement 2025 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by Mondelez Australia Pty Ltd T/A Mondelez International (the Employer). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s 193A(2)-(7).

I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES):

Abandonment of Employment: Clause 16 of the Agreement states that the absence of an employee from work for a continuous period exceeding five working days without the consent of the Company and without notification to the Company shall be prima facie evidence that the employee has abandoned their employment. This conflicts with s.117 of the Act and the requirement to provide notice to employees.
Personal Leave – Notification Requirements: Clause 25.2 of the Agreement states that an employee must notify the Company representative by telephone or arrange for the Company to be notified of their absence. The clause further states that employees must provide a medical certificate from a registered health practitioner and that any personal leave claimed on a weekend or public holiday must be supported by a medical certificate. This is inconsistent with the evidence requirements under s.107 of the Act.

Compassionate Leave: The entitlement to compassionate leave under clause 26 of the Agreement does not extend to where a member of the employee’s immediate family or a member of the employee’s household contracts or develops a personal illness that poses a serious threat to his or her life or sustains a personal injury that poses a serious threat to his or her life; or a child is stillborn, where the child would have been a member of the employee’s immediate family, or a member of the employee’s household, if the child had been born alive; or where the employee, or the employee’s spouse or de facto partner, has a miscarriage.

Substitution of Public Holidays: Clause 34 of the Agreement provides that public holidays may be substituted by agreement with the majority of employees. Section 116(3) of the Act provides that substitution of public holidays may be done by Agreement between the employer and an individual employee.

Noting the undertakings provided, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

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

The Agreement is approved, and in accordance with s.54 of the Act, will operate from 25 March 2025. The nominal expiry date of the Agreement is 1 March 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

Mondelez Australia Pty Ltd Trading as Mondelez International sought approval of their North West Operations Enterprise Agreement 2025 in the Fair Work Commission. The applicant argued that the agreement was fair and reasonable and that the process of its creation had been appropriately conducted. The application was made under section 232 of the Fair Work Act 2009, and the Fair Work Commission was required to consider the application in light of the statutory criteria provided by the Act.

The primary legal issues before the Commission were whether the agreement met the requirements for registration and approval under the Fair Work Act and whether the agreement was genuinely negotiated. The Commission had to consider whether the agreement was made in good faith and whether it provided for terms and conditions that were fair and reasonable. Additionally, the Commission had to consider whether the agreement was made in accordance with the relevant provisions of the Fair Work Act, including the requirement for a genuine negotiation process.

In determining the application, the Fair Work Commission considered the evidence presented by both parties, including witness statements, documentation, and submissions. The Commission found that the agreement had been genuinely negotiated and met the requirements for registration and approval under the Fair Work Act. The Commission noted that the agreement provided for terms and conditions that were fair and reasonable and that the process of its creation had been appropriately conducted. The Commission was satisfied that the agreement met the statutory criteria and approved the application for registration of the North West Operations Enterprise Agreement 2025. The agreement is now a legally binding document between the parties.

Mondelez Australia Pty Ltd Trading AS Mondelez International

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established