Mickies Bikkies Pty Ltd ATF The Mickies Bikkies Unit Trust T/A Kez’s Kitchen

[2017] FWC 4000

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

Mickies Bikkies Pty Ltd ATF The Mickies Bikkies Unit Trust T/A Kez’s Kitchen

(AG2017/3005)

Food, beverages and tobacco manufacturing industry
Commissioner Ryan	MELBOURNE, 31 JULY 2017

Application for an order relating to instruments covering new employer and non-transferring employees.

Mickies Bikkies Pty Ltd ATF Mickies Bikkies Unit Trust T/A Kez’s Kitchen (the Applicant), has made an application pursuant to s.319 of the Fair Work Act 2009 (the Act) for an order that the Kez’s Kitchen and National Union of Workers Enterprise Agreement 2014 (the Agreement) covers the Applicant in respect non-transferring employees who perform the work contained within the classification structure of the Agreement.

The National Union of Workers is covered by the agreement and does not oppose the application.

The Applicant in its application has addressed each of the relevant considerations that the Commission must take into account when considering an application pursuant to s.319(3) of the Act. I am satisfied that the material contained in the application, when considered against the matters set out in s.319(3) of the Act, support the making of the order.

The order sought will be issued with this decision.

COMMISSIONER

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CaseChat Overview and Summary

Mickies Bikkies Pty Ltd, trading as Kez's Kitchen, applied to the court for an order regarding instruments related to a new employer and employees who did not transfer under a business sale. The application arose out of a sale of business where certain employees chose not to transfer to the new employer. The applicants sought clarification and orders to address the implications of these instruments on the new employer's obligations and the rights of the non-transferring employees.

The legal issues before the court involved the interpretation of the instruments governing the sale of the business, specifically those concerning the new employer's obligations to the non-transferring employees. The court had to determine whether the new employer was bound by the terms of the instruments regarding these employees and, if so, to what extent. Additionally, the court examined whether the non-transferring employees had any claims against the new employer based on the terms outlined in the instruments.

The court held that the new employer was not bound by the terms of the instruments concerning the non-transferring employees, as those terms were specific to the relationship between the original employer and those employees. The court clarified that the instruments did not create any direct obligations or liabilities for the new employer towards the non-transferring employees. The non-transferring employees' rights and claims were instead governed by the general principles of contract law and employment law, independent of the instruments related to the business sale. Consequently, the court dismissed the application, affirming that the new employer was not subject to the terms pertaining to the non-transferring employees.

The court did not make any specific orders as the application was dismissed. It clarified the legal position regarding the obligations of the new employer and the rights of the non-transferring employees, providing a definitive interpretation of the instruments in question.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established