Hays Specialist Recruitment (Australia) Pty Ltd

Hays Specialist Recruitment (Australia) Pty Ltd sought the termination of an enterprise agreement after its nominal expiry date. The dispute was heard in the Fair Work Commission. The primary issue before the Commission was whether the company could apply for the termination of the agreement, despite the absence of employees currently employed under it.

The Commission considered whether the company was genuinely seeking to terminate the agreement for reasons unrelated to its content, or if it was attempting to avoid the obligations of the agreement. Given that the company was unable to secure work with the current agreement and there were no employees currently employed under it, the Commission concluded that the company's application was not an attempt to avoid the agreement's obligations. The Commission found that the company had a legitimate reason to seek the termination of the agreement, as it was no longer operationally viable.

Accordingly, the Commission granted the application for termination, and the enterprise agreement was terminated. The decision emphasised the importance of considering the operational realities of businesses when determining applications for the termination of enterprise agreements. The Commission noted that the ability to secure work and the operational viability of the business are crucial factors in assessing the legitimacy of such applications.