Hays Specialist Recruitment (Australia) Pty Ltd

[2013] FWCA 3306

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Hays Specialist Recruitment (Australia) Pty Ltd
(AG2013/6156)

HAYS WORKPLACE AGREEMENT 2008-2012

Clerical industry
COMMISSIONER MCKENNA	SYDNEY, 29 MAY 2013

Application for termination of the Hays Workplace Agreement 2008-2012.

[1] Hays Specialist Recruitment (Australia) Pty Ltd (“the applicant”) has made an application pursuant to Schedule 3, item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 to terminate a collective agreement-based transitional instrument titled the Hays Workplace Agreement 2008-2012 (“the Agreement”). As to such applications, s.226 of the Fair Work Act 2009 (“the Act”) provides as follows:

“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.”

[2] In support of the application, the applicant relied principally on a statutory declaration deposed by its Director of Payroll Operations and Company Secretary, as supplemented by submissions on 24 May 2013. Having considered the matters relied on by the applicant in support of the application to terminate the Agreement, and also the views expressed in the submissions of the two employees who provided emailed submissions to the Commission, I am satisfied the Agreement should be terminated.

[3] In accordance with s.226 of the Act, the Agreement is terminated. The termination will come into effect from the date of this decision.

COMMISSIONER

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CaseChat Overview and Summary

Hays Specialist Recruitment (Australia) Pty Ltd applied for the termination of the Hays Workplace Agreement 2008-2012. The application was heard by the Fair Work Commission, which is the body established under the Fair Work Act 2009 to oversee the resolution of workplace disputes in Australia. The application was made on the basis that the Hays Workplace Agreement 2008-2012, which governed the employment terms and conditions of the company's employees, was no longer fit for purpose and should be terminated to allow for a new agreement to be negotiated.

The primary legal issue the Commission was required to decide was whether the Hays Workplace Agreement 2008-2012 should be terminated in its entirety or whether it should be modified to address the issues raised by the company. The Commission also needed to consider whether terminating the agreement would result in any adverse consequences for the employees or whether it would allow for a more appropriate and fair agreement to be negotiated. The Commission needed to balance the company's right to negotiate a new agreement with the employees' right to fair and just terms of employment.

In reaching its decision, the Commission considered the evidence presented by both parties and the relevant legal principles governing workplace agreements. The Commission found that the Hays Workplace Agreement 2008-2012 was outdated and no longer fit for purpose, and that terminating the agreement was the most appropriate course of action. The Commission noted that the agreement had been in place for an extended period and that changes in the labour market and the company's operations meant that a new agreement was necessary. The Commission also found that terminating the agreement would not result in any adverse consequences for the employees and that it would allow for a more appropriate and fair agreement to be negotiated. The Commission therefore granted the application and terminated the Hays Workplace Agreement 2008-2012 in its entirety.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established