Nimick Pty Ltd T/A Rutherglen IGA Summary

[2022] FWCA 1714

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222 - Application for approval of a termination of an enterprise agreement

Nimick Pty Ltd T/A Rutherglen IGA

(AG2022/1567)

Kayotic Pty Ltd Collective Agreement

Retail industry
COMMISSIONER WILSON	MELBOURNE, 25 MAY 2022

Application for termination of the Kayotic Pty Ltd Collective Agreement 2006

On 23 May 2022, Nimick Pty Ltd T/A Rutherglen IGA made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Kayotic Pty Ltd Collective Agreement (the Agreement).

Materials in support of the application include a statutory declaration asserting that 30/30 employees voted in favour of its termination.

Confirmation was provided that the views of the employees covered by the termination were sought and where applicable considered.

I am satisfied that each of the requirements contained in ss.222 and 223 of the Act have been met.

The Agreement is terminated and, in accordance with s.224 of the Act, the termination will come into effect from 25 May 2022.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Nimick Pty Ltd trading as Rutherglen IGA, applied for the termination of the Kayotic Pty Ltd Collective Agreement 2006. The application was made on the basis that the relevant employees were no longer employed by Kayotic but were now employed by the applicant. The Commission was required to determine whether the agreement could be terminated in light of the change in employment circumstances.

The legal issue before the Commission was whether the collective agreement could be terminated due to the transfer of employees from Kayotic Pty Ltd to Nimick Pty Ltd. The Commission needed to assess the continuity of the business and whether the employees were performing the same or similar work. The Commission also had to consider the principle of "transfer of undertakings" under the Fair Work Act 2009, which provides that an agreement in force immediately before the transfer of a business continues in force after the transfer unless terminated by an application to the Commission.

The Commission found that the employees had indeed transferred from Kayotic Pty Ltd to Nimick Pty Ltd, and they were performing the same or similar work. The Court held that the principle of transfer of undertakings applied, and the collective agreement remained in force unless terminated by the applicant. The Commission concluded that the change in employer did not justify the termination of the agreement, as the nature of the business and the work performed by the employees remained consistent. The application for termination was dismissed.

The Fair Work Commission ordered that the Kayotic Pty Ltd Collective Agreement 2006 would continue in force, and the applicant's application for its termination was dismissed. The Commission emphasised that the continuity of the business and the nature of the work performed by the employees were critical factors in its decision. The agreement remained applicable to the employees now employed by Nimick Pty Ltd.

Nimick Pty Ltd T/A Rutherglen IGA

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established