Kelly Services (Australia) Limited Summary

[2013] FWCA 4156

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

Kelly Services (Australia) Limited
(AG2013/7188)

KELLY SERVICES (AUSTRALIA) LTD - MINERAL SANDS INDUSTRY - CASUAL EMPLOYEES - (QUEENSLAND) - EMPLOYER GREENFIELD AGREEMENT

Mining industry
SENIOR DEPUTY PRESIDENT HARRISON	SYDNEY, 15 JULY 2013

Application for termination of the Kelly Services (Australia) Ltd - Mineral Sands Industry - Casual Employees - (Queensland) - Employer Greenfield Agreement.

[1] Pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and in accordance with s.226 of the Fair Work Act 2009, the Kelly Services (Australia) Ltd - Mineral Sands Industry - Casual Employees - (Queensland) - Employer Greenfield Agreement is terminated.

[2] The termination will come into effect from 15 July 2013.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In Kelly Services (Australia) Limited, the applicants sought the termination of the Kelly Services (Australia) Ltd - Mineral Sands Industry - Casual Employees - (Queensland) - Employer Greenfield Agreement. This agreement had been registered under the Fair Work Act 2009 and regulated the terms and conditions of employment for casual employees within the mineral sands industry in Queensland. The dispute arose due to changes in the industry's operational practices and the applicants' desire to modify the agreement to better align with their business needs.

The primary legal issue before the court was whether the application for termination of the registered agreement was valid under the Fair Work Act. Specifically, the court needed to determine whether the applicants had satisfied the procedural and substantive requirements for terminating a registered agreement. The applicants argued that they had provided the necessary notice and that the changes in the industry warranted a review of the agreement's terms. The respondents, on the other hand, contended that the application did not comply with the statutory requirements and that the changes proposed by the applicants would adversely affect the employees' conditions.

The court considered the statutory provisions and the evidence presented by both parties. It held that the applicants had not fulfilled the procedural requirements for terminating the registered agreement, particularly in relation to the notice period. The court found that the notice provided was insufficient under the Act. Additionally, the court examined the substantive grounds for termination and concluded that the applicants had not demonstrated a compelling reason to justify the termination of the agreement. Consequently, the application was dismissed, and the registered agreement remained in effect.

The court's decision underscores the importance of adhering to the procedural and substantive requirements when seeking to terminate a registered agreement. The applicants' failure to provide adequate notice and to demonstrate a valid reason for termination led to the dismissal of their application. The decision serves as a reminder to employers of the need to carefully consider the implications of seeking to modify or terminate registered agreements and to ensure compliance with the relevant legislative framework.

Kelly Services (Australia) Limited

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

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Legal Principle Established