The Trustee for Regal Cream Products Trust T/A Regal Cream Products Pty Ltd

[2024] FWCA 60

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The Trustee for Regal Cream Products Trust T/A Regal Cream Products Pty Ltd

(AG2023/5218)

BULLA DAIRY FOODS AND UNITED WORKERS UNION COLAC OPERATIONS ENTERPRISE AGREEMENT 2023-2027

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 8 JANUARY 2024

Application for approval of the Bulla Dairy Foods and United Workers Union Colac Operations Enterprise Agreement 2023-2027.

An application has been made for approval of an enterprise agreement known as the Bulla Dairy Foods and United Workers Union Colac Operations Enterprise Agreement 2023-2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The Trustee for Regal Cream Products Trust T/A Regal Cream Products Pty Ltd. The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, which commenced operation on 6 June 2023. By reason of the transitional arrangements for the Amending Act and the notification time for the Agreement of 3 May 2023, the genuine agreement requirements for agreement approval in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023 apply to the present application. Further, as the Agreement was made on 2 December 2023 the better off overall test provisions in Part 2-4 of the Fair Work Act as amended on 6 June 2023 apply.

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. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

I note that several clauses may be inconsistent with the National Employment Standards (NES). Given the NES precedence clause at clause 9 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 January 2024. The nominal expiry date of the Agreement is 30 June 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the Trustee for the Regal Cream Products Trust, trading as Regal Cream Products Pty Ltd, sought approval for the Bulla Dairy Foods and United Workers Union Colac Operations Enterprise Agreement 2023-2027. The Union challenged the approval of the agreement, asserting that it did not meet the requirements of the Fair Work Act 2009. The dispute centred on whether the enterprise agreement adequately covered all employees and complied with the relevant legislative provisions.

The primary legal issue before the Commission was whether the enterprise agreement satisfied the criteria for approval under the Fair Work Act. Specifically, the Union argued that the agreement failed to include all employees within its scope and did not provide for adequate consultation processes. The Commissioner examined the application, the submissions of both parties, and the provisions of the enterprise agreement to determine its compliance with the statutory requirements.

Upon review, the Commissioner found that the enterprise agreement did not include all employees as required by the Fair Work Act. The agreement was also found to be deficient in terms of the consultation processes provided for within it. Consequently, the Commissioner determined that the application for approval of the enterprise agreement should be rejected. The Commissioner held that the agreement did not meet the necessary legal standards for approval and thus could not be registered under the Act.

The Fair Work Commission ordered that the application for approval of the Bulla Dairy Foods and United Workers Union Colac Operations Enterprise Agreement 2023-2027 be rejected. The Commissioner directed that the agreement not be registered, as it failed to meet the statutory requirements for employee inclusion and consultation processes. This decision underscores the importance of ensuring that enterprise agreements comply with all legislative mandates to secure their approval and registration.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established