[1] The applicant, DeLaval Pty Ltd, has applied under s 225 of the Fair Work Act 2009 (Act) to terminate the DeLaval Pty Ltd Enterprise Agreement 2014[1] (Agreement). The Agreement is expressed to cover "the employees whose employment is, at any time when the agreement is in operation, subject to the agreement" and who perform work in connection with specified industries and callings and are employed at 1 Global Drive, Westmeadow in Victoria or any other location where such work may be performed.

[2] The industries and callings said to be covered by the Agreement comprise of the following:[2]

• (1) storeworker, packer or sorter;

• (2) an assistant to a storeworker, packer or sorter;

• (3) an assembler, collector or checker of goods in course.

[3] The Agreement incorporates and is read and interpreted in conjunction with the Storage Services and Wholesale Award 2010 to the extent of any inconsistency. There is no employee organisation party to the Agreement, which reached its nominal expiry date on 25 June 2016.

[4] Pursuant to s 225 of the Act, where an enterprise agreement has passed its nominal expiry date, one or more of the employers, employees or employee organisations covered by the Agreement may apply to the Commission for its termination. If such an application is made, the Commission must terminate the agreement if any of the requirements of ss 226(1)(a), (b) or (c) is met (see s 226). Relevantly in this case, the requirement of clause 226(1)(b) will be made out if the Commission is satisfied that the Agreement does not, and is not likely to, cover any employees.

[5] Section 226(1A) provides that the Commission must terminate an agreement under

s 226(1) only if it is satisfied that it is appropriate in all the circumstances to do so. Further,

s 226(3) states that, in deciding whether to terminate the agreement, the Commission must consider the views of any employees covered by the agreement, each employer, and each employee organisation (if any).

[6] Section 226(4) requires the Commission to have regard to whether the application was made at or after the notification time for a proposed enterprise that will cover the same or substantially the same group of employees as the existing agreement; whether bargaining for the proposed enterprise agreement is occurring; and whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement. Section 226(5) provides that in deciding whether to terminate the agreement, the Commission may also have regard to any other relevant matter.

[7] The applicant relies upon the Form F24C declaration of its HR Director South, Southeast Asia and Oceania, Gail Vitale, in which it is declared that the applicant has no current employees covered by the Agreement and this has been the case since 2021. It is further declared that the applicant no longer maintains a warehouse in Australia.

[8] Further, in accordance with directions of the Commission, the applicant filed a witness statement of its VP Market Area South, Southeast Asia and Oceania, Justin Thompson. The witness statement describes the circumstances for the applicant's decision to close its Australian warehouse, and the employee redundancies that followed from this decision.

[9] Based on the material before the Commission, I am satisfied that the Agreement does not, and is not likely to, cover any employees. Accordingly, the requirement set out in s 226(1)(b) is met.

[10] For the purposes of s 226(3) of the Act, it is the applicant's view that the Agreement should be terminated. There are no employee organisations or employees covered by the Agreement.

[11] The particular circumstances referred to in s 226(4) do not arise for consideration in this case. I do not consider there to be any other matters that are relevant to the question of whether it is appropriate to terminate the Agreement.

[12] I am satisfied that it is appropriate in all the circumstances to terminate the Agreement, and I do so. The termination will operate from 16 December 2025.

[1] [2014] FWCA 4083; AE408676

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