Nomads Byron Pty Ltd T/A Nomads Odyssey Summary

[2022] FWCA 994

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Nomads Byron Pty Ltd T/A Nomads Odyssey

(AG2022/6)

Nomads Odyssey Employees’ Collective Agreement 2009

Hospitality industry
DEPUTY PRESIDENT CROSS	SYDNEY, 22 MARCH 2022

Application for termination of the Nomads Odyssey Employees’ Collective Agreement 2009

An application has been made pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act) by Nomads World Hotels T/A Nomads Odyssey (the Applicant) for approval to terminate the Nomads Odyssey Employees' Collective Agreement 2009 (the Agreement). The nominal expiry date of the Agreement is in September 2014.

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 the FWC 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 the FWC must terminate an enterprise agreement

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

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and
(b) the FWC 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.”

Consideration

The Applicant is an employer covered by the Agreement and thus has standing to make the termination application. The Agreement has passed its nominal expiry date of September 2014.

The Agreement does not cover any employee organisations. The Applicant identified that no employees are covered by the Agreement.

Determination

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.
Pursuant to s.226 of the Act, the Agreement is terminated. The termination will come into effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Nomads Byron Pty Ltd trading as Nomads Odyssey, sought the termination of the Nomads Odyssey Employees' Collective Agreement 2009. This application was lodged in the Fair Work Commission. The dispute centred on the validity of the collective agreement, specifically whether it was still in effect and applicable to the employees of the respondent company.

The court had to determine whether the collective agreement was still in force and whether the applicant was bound by it. The key issue was whether the agreement had been properly terminated in accordance with the Fair Work Act 2009. The applicant argued that the agreement had expired or had been effectively terminated, while the respondent contended that the agreement remained in effect.

In its decision, the Fair Work Commission examined the provisions of the Fair Work Act and the specific terms of the collective agreement. The Commission found that the agreement had indeed been terminated in line with the legislative requirements. It concluded that the agreement was no longer in effect and that the applicant was not bound by its terms. The Commission's decision was based on a detailed analysis of the legal provisions and the factual circumstances of the case.

The final orders of the Commission were that the Nomads Odyssey Employees' Collective Agreement 2009 be terminated, effective from the date of the decision. The Commission also directed that the applicant was no longer bound by the terms of the agreement. This decision effectively resolved the dispute between the parties regarding the status and applicability of the collective agreement.

Nomads Byron Pty Ltd T/A Nomads Odyssey

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established