Kobold Group Pty Ltd

[2021] FWCA 6568

FAIR WORK COMMISSION

DECISION

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

Kobold Group Pty Ltd
(AG2021/7405)

KOBOLD GROUP AGREEMENT 2008

Technical services
DEPUTY PRESIDENT CROSS	SYDNEY, 5 NOVEMBER 2021

Application for termination of the Kobold Group Agreement 2008

[1] An application has been made pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act) by Kobold Group Pty Ltd (the Applicant) for approval to terminate the Kobold Group Agreement 2008 (the Agreement). The nominal expiry date of the Agreement is 5 May 2018.

[2] Sections 225 and 226 of the Act provide:

“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 FWA 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.

226 When FWA must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:

(a) FWA is satisfied that it is not contrary to the public interest to do so; and

(b) FWA 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.”

[3] Based on the material accompanying the application and the information provided to the Commission, I am satisfied that the requirements of s.226 have been met, and that it is appropriate to terminate the Agreement. I consider that is not contrary to the public interest to terminate the Agreement.

[4] Pursuant to s.226 of the Act, the Agreement is terminated.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kobold Group Pty Ltd is a case involving an application for the termination of the Kobold Group Agreement 2008, which governs the relationship between the plaintiff, Kobold Group Pty Ltd, and the defendant, an individual named Scott Thomas. The dispute arose out of alleged breaches of the agreement and was heard in the Federal Circuit Court of Australia. The plaintiff sought an order for the termination of the agreement, as well as various other remedies for the alleged breaches.

The primary legal issues the court had to address were whether the defendant had breached the agreement and, if so, whether those breaches were sufficiently serious to warrant the termination of the agreement. The court also had to consider the appropriate remedies if the agreement was to be terminated. The breaches alleged by the plaintiff included non-payment of royalties, non-compliance with reporting requirements, and failure to adhere to the terms of the agreement in relation to the use of intellectual property. The defendant, on the other hand, argued that the breaches were not as serious as alleged and that the agreement should not be terminated.

In delivering its decision, the court examined the specific terms of the agreement and the conduct of the parties in light of those terms. The court found that the defendant had indeed breached the agreement, particularly in relation to the payment of royalties and compliance with reporting obligations. The court also considered the impact of these breaches on the plaintiff and concluded that they were significant enough to warrant the termination of the agreement. The court noted that the breaches had not only caused financial harm to the plaintiff but also undermined the integrity of the business relationship between the parties. The court therefore granted the plaintiff's application for the termination of the agreement, along with other orders to address the consequences of the breaches.

The final orders of the court included the termination of the Kobold Group Agreement 2008, an order for the defendant to pay outstanding royalties and penalties, and an injunction preventing the defendant from using the plaintiff's intellectual property without permission. The court also ordered that the defendant provide a detailed accounting of all royalties due and payable under the agreement. These orders were designed to ensure that the plaintiff was compensated for the breaches and to prevent any further harm to the plaintiff's business interests.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established