Regal Cream Products Pty Ltd Trading AS Bulla Dairy Foods

BULLA DAIRY FOODS DANDENONG & UNITED WORKERS UNION ENTERPRISE AGREEMENT 2021

Application for termination of the Bulla Dairy Foods Dandenong & United Workers Union Enterprise Agreement 2021

[1] Regal Cream Products Pty Ltd Trading AS Bulla Dairy Foods (the Employer) has applied, pursuant to s 225 of the Fair Work Act 2009 (the Act), to terminate Bulla Dairy Foods Dandenong & United Workers Union Enterprise Agreement 2021[1] (the Agreement).

[2] Sections 225 and 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.226 of the Act:

"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;

(c) an employee organisation covered by the agreement.

226 Terminating an enterprise agreement after its nominal expiry date

(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or

(b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(i) the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii) the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii) if the agreement contains terms providing entitlements relating to the termination of employees' employment - each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.

(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2) This subsection covers a termination of the employment of an employee:

(a) at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b) because of the insolvency or bankruptcy of the employer.

(3) In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a) the employees (unless there are no employees covered by the agreement);

Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).

(4) In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a) whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

(b) whether bargaining for the proposed enterprise agreement is occurring; and

(c) 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.

(5) In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter."

[3] The Agreement is a single enterprise agreement and was approved by the Fair Work Commission (the Commission) on 17 February 2022[2]. It was approved to operate from 24 February 2022 with a nominal expiry date of 30 September 2025. The United Workers' Union (the UWU) is noted to be covered by the Agreement in accordance with s 201(2) of the Act.

[4] I note the Form F24C declaration of Ms Holly Treverton (People Partner) filed in support of the application on behalf of the Employer, declares that there are no employees covered by the Agreement or likely to be covered by the Agreement. That is because the employees formerly covered by the Agreement are now covered in their employment by the Bulla Dairy Foods and United Workers Union Melbourne Operations Enterprise Agreement 2025[3]. The UWU consents to the application to terminate the Agreement.

[5] On the material filed with the Commission including Ms Treverton's declaration, I am satisfied that the application to terminate the Agreement has been made by an employer covered by the Agreement (s 225(a)) and that the Agreement does not and is not likely to cover any employees (s 226(1)(b)). I have taken into account the views of the Employer and the UWU in relation to this application (s 226(3)) and that for the purposes of s.226(4), there is no "proposed enterprise agreement" and none of the matters in that subsection are relevant to the application before me. I am further satisfied that there are no other relevant matters that I should take into account in the determination of this matter of which I am aware (s 226(5)) and that it is appropriate in all the circumstances to terminate the Agreement (s226(1A)).

[6] Given my findings in respect of ss 225 and 226 of the Act, I must terminate the Agreement. The termination will operate from 2 April 2026.

[2] [2022] FWCA 382.

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