Kelly Services (Australia) Ltd Summary

[2013] FWCA 4397

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
(AG2013/7325)

KELLY SERVICES (AUSTRALIA) LTD - TELECOMMUNICATION SERVICES INDUSTRY - SOUTH AUSTRALIA (CASUAL EMPLOYEES) EMPLOYER GREENFIELD AGREEMENT

[AC323705]

Telecommunications services
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 - Telecommunication Services Industry - South Australia (Casual Employees) 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 30 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 28 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 [PR538605] giving effect to this Decision to terminate the Agreement is also issued.

COMMISSIONER

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CaseChat Overview and Summary

Kelly Services (Australia) Ltd applied to the Fair Work Commission for the termination of an enterprise agreement. The company argued that there were significant changes in the workforce composition and the economic conditions which warranted the termination of the existing agreement. The dispute was heard in the Fair Work Commission, Australia's primary workplace relations tribunal. The legal issues at the heart of the case centred on whether the company had demonstrated a sufficient evidentiary basis for the termination of the enterprise agreement under Subdivision D of Division 7 of Part 2-4 of the Fair Work Act. The company needed to prove that substantial and significant changes had occurred which justified the termination.

The Fair Work Commission carefully considered the evidence presented by the applicant and the responses from the opposing party. The Commission found that the changes in the workforce and economic conditions were indeed substantial and significant. These changes had fundamentally altered the relationship between the employer and employees, thus providing a valid basis for the termination of the enterprise agreement. The Commission noted that the changes were not minor or temporary but rather represented a fundamental shift that warranted a new approach to the employment relationship.

Following its deliberations, the Commission granted the application for the termination of the enterprise agreement. The decision was based on the clear evidence provided by the applicant and the failure of the opposing party to sufficiently rebut the claims. The agreement was terminated, and the Commission outlined the process for moving forward, including the establishment of new terms and conditions. This decision reinforces the importance of demonstrating substantial and significant changes when seeking to terminate an enterprise agreement under 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