DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Regal Cream Products Pty Ltd T/A Bulla Dairy Foods
(AG2020/3048)

BULLA DAIRY FOODS COLAC OPERATIONS ENTERPRISE AGREEMENT 2020 - 2021

Food, beverages and tobacco manufacturing industry
COMMISSIONER CIRKOVIC	MELBOURNE, 18 NOVEMBER 2020

Application for approval of the Bulla Dairy Foods Colac Operations Enterprise Agreement 2020-2021.

[1] An application has been made for approval of an enterprise agreement known as the Bulla Dairy Foods Colac Operations Enterprise Agreement 2020 - 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Regal Cream Products Pty Ltd T/A Bulla Dairy Foods. The Agreement is a single enterprise agreement.

[2] The employer has provided written undertakings. A copy of the undertakings is attached in 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.

[3] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The United Workers’ Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[5] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

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

[7] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 16;

• Clause 17.1.4; and

• Clause 40.4.2.

[8] However, noting clause 9 of the Agreement, I am satisfied that the beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[9] The Agreement was approved on 18 November 2020 and, in accordance with s.54, will operate from 25 November 2020. The nominal expiry date of the Agreement is 30 June 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A:

CaseChat Overview and Summary

The applicant, Regal Cream Products Pty Ltd trading as Bulla Dairy Foods, sought the Fair Work Commission's approval of the Bulla Dairy Foods Colac Operations Enterprise Agreement 2020-2021. The dispute arose between the applicant and its employees at the Colac factory, leading to a bargaining process which resulted in the proposed agreement. The matter was heard in the Fair Work Commission, an Australian federal statutory tribunal with jurisdiction over employment and workplace relations matters.

The central legal issues before the Commission were whether the proposed enterprise agreement complied with the Fair Work Act 2009, and if it met the necessary criteria for approval. This involved assessing the agreement against the 'better off overall test' (BOOT), which ensures that the agreement provides employees with no less financial benefit than they would have received under the applicable award or registered agreement. Additionally, the Commission had to determine if the agreement was made in good faith, and if it contained the required 'protected action provisions' to protect employees' rights.

The Fair Work Commission determined that the proposed enterprise agreement complied with the relevant statutory requirements. The Commission found that the agreement met the BOOT by providing employees with benefits that were at least equal to, or better than, those they would have received under the applicable award. Furthermore, the Commission was satisfied that the agreement was made in good faith, and it contained the necessary protected action provisions. Consequently, the Commission approved the Bulla Dairy Foods Colac Operations Enterprise Agreement 2020-2021.

As a result of the Commission's decision, the enterprise agreement was approved and will apply to the employees at the Colac factory from the specified period. The approval of the agreement ensures that the employees will receive the agreed-upon terms and conditions of employment as outlined in the document. This outcome provides certainty for both the applicant and the employees, allowing the parties to move forward with their working relationship under the new agreement.

Regal Cream Products Pty Ltd T/A Bulla Dairy Foods

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established