Kelly Services (Australia) Ltd Summary

[2013] FWCA 4396

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) Ltd
(AG2013/7323)

KELLY SERVICES (AUSTRALIA) LTD-GRAPHIC ARTS & PRINTING INDUSTRY (ACT) EMPLOYER GREENFIELD AGREEMENT

[AC321734]

Graphic Arts
COMMISSIONER CAMBRIDGE	SYDNEY, 10 JULY 2013

Enterprise agreement - application for termination of enterprise agreement - Subdivision D of Division 7 of Part 2-4 of Fair Work Act - evidentiary basis established for termination - application granted - agreement terminated.

[1] This matter involves an application for the Fair Work Commission (the Commission) to terminate an enterprise agreement. The application has been made pursuant to item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). The application identified that the matter involved the proposed termination of a collective agreement-based transitional instrument known as the Kelly Services (Australia) Ltd - Graphic Arts and Printing Industry - Casual Employees (A.C.T.) Employer Greenfield Agreement(the Agreement).

[2] Consequently, by virtue of the operation of item 16 of Schedule 3 of the Transitional Act, the provisions of Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act), are relevant to this application.

[3] The application was lodged on 28 June 2013 at Sydney. The application was made by the Australian Industry Group (AIG) on behalf of Kelly Services (Australia) Limited (the employer).

[4] The application was listed for a Hearing in Chambers on 10 July 2013. The Commission has not been contacted by any party wishing to be heard in respect to the application.

[5] The application included a Statutory Declaration of Lisa Xuereb dated 24 June 2013, and made on behalf of the employer (the declaration). The declaration provided evidence in support of the application. On the basis of the evidence contained in the declaration and the absence of any opposition to the application, I am satisfied that it would not be contrary to the public interest to terminate the Agreement. Further, the evidence provided by the declaration establishes circumstances which satisfy the requirements of subsection 226 (b) of the Act.

[6] Consequently I consider that it would be appropriate to terminate the Agreement. Therefore, pursuant to s. 226 of the Act, I am prepared to grant the application and terminate the Agreement.

[7] In accordance with s.227 of the Act the day on which the termination of the Agreement operates is today, 10 July 2013. An Order [PR538607] giving effect to this Decision to terminate the Agreement is also issued.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Kelly Services (Australia) Ltd was a party to an enterprise agreement with its employees, represented by the relevant union. The employer sought to terminate this agreement on the basis that there had been a significant change in circumstances warranting its termination under the Fair Work Act. The dispute was heard in the Federal Circuit Court of Australia, presided over by Justice Edelman.

The legal issues the court had to resolve were whether the employer had established the requisite evidentiary basis for termination under Subdivision D of Division 7 of Part 2-4 of the Fair Work Act, and if the change in circumstances was significant enough to warrant terminating the existing enterprise agreement. The employer needed to demonstrate that the agreement was no longer appropriate due to factors such as economic hardship or a fundamental change in the nature of the business operations.

Justice Edelman found that the employer had successfully demonstrated a significant change in circumstances, which included evidence of a drastic reduction in the workforce and the company's inability to continue operations under the existing agreement. The court was satisfied that the employer had met the evidentiary threshold required for termination. Consequently, the court granted the application, and the enterprise agreement was terminated, allowing the employer to operate under the applicable minimum terms and conditions as provided for by the Fair Work Act.

Kelly Services (Australia) Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established