Packs On Backs Pty Ltd T/A Nomads Industy Summary

[2022] FWCA 963

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Packs On Backs Pty Ltd T/A Nomads Industy

(AG2021/9360)

DEPUTY PRESIDENT CROSS

SYDNEY, 18 MARCH 2022

Application for termination of the Nomads Industry 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 Industry (the Applicant) for approval to terminate the Nomads Industry 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 matter before the Fair Work Commission involved an application by Packs On Backs Pty Ltd, trading as Nomads Industry, for the termination of the Nomads Industry Employees' Collective Agreement 2009. The company sought to terminate the agreement on the grounds that it had become redundant. The application was contested by the relevant trade union. The Fair Work Commission was tasked with determining whether the collective agreement had indeed become redundant and, if so, whether it should be terminated.

The central legal issue before the Commission was whether the Nomads Industry Employees' Collective Agreement 2009 had indeed become redundant, thereby justifying its termination. The Commission considered the criteria for determining redundancy, including whether the agreement was no longer applicable or relevant to the parties involved. Additionally, the Commission examined the implications of terminating the agreement on the employees and the broader industrial relations environment.

The Fair Work Commission found that the Nomads Industry Employees' Collective Agreement 2009 had indeed become redundant. The Commission concluded that the agreement was no longer applicable due to significant changes in the business operations and workforce of Nomads Industry. Consequently, the agreement did not continue to serve the interests of the employees or the employer. The Commission also noted that the termination of the agreement would not adversely affect the employees, as there were no outstanding entitlements or obligations under the agreement. The Commission granted the application for termination, finding that the agreement could be lawfully terminated.

The Fair Work Commission ordered the termination of the Nomads Industry Employees' Collective Agreement 2009, effective from the date of the decision. The Commission directed that all provisions of the agreement would cease to have effect, and that the parties were free to negotiate a new agreement if they wished. The decision provided clarity on the circumstances under which a collective agreement could be deemed redundant and terminated, and it offered guidance for future applications of this nature.

Packs On Backs Pty Ltd T/A Nomads Industy

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established