Australian Dairy Blends Pty Ltd

[2021] FWCA 2491

[2021] FWCA 2491

FAIR WORK COMMISSION

DECISION

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

Australian Dairy Blends Pty Ltd
(AG2021/4857)

AUSTRALIAN DAIRY BLENDS (MAINTENANCE SERVICES) UNION COLLECTIVE AGREEMENT 2010

(ODN AG2011/1030) [AE885889]

Manufacturing and associated industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 4 MAY 2021

Application for termination of the Australian Dairy Blends (Maintenance Services) Union Collective Agreement 2010.

[1] Australian Dairy Blends Pty Ltd (company) has applied under s 225 of the Fair Work Act 2009 (Act) to terminate the Australian Dairy Blends (Maintenance Services) Union Collective Agreement 2010 (Agreement). The Agreement is expressed to cover the company and maintenance services employees at 100 Bridge Road, Keysborough, in Victoria, as well as the Australian Manufacturing Workers’ Union (AMWU). The Agreement reached its nominal expiry date on 1 October 2013.

[2] Section 225 of the Act provides:

“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;

(c) an employee organisation covered by the agreement.”

[3] Section 226 of the Act provides:

“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 company’s F24C declaration, signed by Ms Rachael McGann, states that there are no employees covered by the Agreement, and that the last employee whose employment was covered by the Agreement ceased employment in 2019. The declaration states that maintenance is now only required on an ad hoc basis and that the maintenance function has been outsourced. In correspondence to my chambers of 28 April 2021, the AMWU advised that it does not oppose the company’s application to terminate the Agreement. The company and the AMWU advised the Commission that they were content for the application to be determined on the papers and I consider that it is appropriate to do so.

[5] There is nothing before me which raises public interest considerations that might militate against termination of the Agreement. I am satisfied that terminating the Agreement is not contrary to the public interest. Further, 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. In this regard, I note that the view of the employer is that the Agreement should be terminated, that the union does not oppose termination, and that there are no relevant employees.

[6] As I am satisfied that it is not contrary to the public interest to terminate the Agreement, and that it is appropriate to do so, I am required by s 225 of the Act to terminate the Agreement, and I do so. The termination will operate from 11 May 2021.

DEPUTY PRESIDENT

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