Kelly Services (Australia) Ltd Summary

[2013] FWCA 4401

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
(AG2013/7333)

KELLY SERVICES (AUST) LTD-TELECOMMUNICATION SERVICES INDUSTRY-NT - (CASUAL EMPLOYEES) - EMPLOYER GREENFIELD AGREEMENT

[AC321746]

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 - Northern Territory - (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 [PR538601] giving effect to this Decision to terminate the Agreement is also issued.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case before the court involved Kelly Services (Australia) Ltd, which sought to terminate an existing enterprise agreement. The application was made under Subdivision D of Division 7 of Part 2-4 of the Fair Work Act. The primary dispute centred on whether the conditions for the termination of the enterprise agreement were met, including the establishment of an evidentiary basis for such termination.

The legal issues before the court were whether Kelly Services had established the necessary criteria to justify the termination of the enterprise agreement. This included determining if there were substantial changes in circumstances warranting the termination, and whether the company had provided sufficient evidence to support its application.

The court found that Kelly Services had indeed established an evidentiary basis for the termination of the enterprise agreement. It was concluded that the changes in the working environment and the economic conditions were significant enough to warrant a re-evaluation of the existing terms. Consequently, the court granted the application and terminated the enterprise agreement in accordance with the provisions of the Fair Work Act.

The final orders of the court included the termination of the enterprise agreement effective from the date of the judgment, and mandated that the new terms be negotiated between the parties in accordance with the provisions of 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