Kelly Services (Australia) Ltd

[2013] FWCA 4398

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
(AG2013/7327)

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

[AC323706]

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 - Western 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 [PR538603] giving effect to this Decision to terminate the Agreement is also issued.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case of Kelly Services (Australia) Ltd, the Fair Work Commission was tasked with determining an application for the termination of an enterprise agreement. The applicant, Kelly Services (Australia) Ltd, sought to terminate the existing enterprise agreement under the provisions of Subdivision D of Division 7 of Part 2-4 of the Fair Work Act. The dispute centred on whether the conditions specified in the Act had been met to justify the termination of the agreement.

The primary legal issue before the Commission was whether Kelly Services (Australia) Ltd had established the necessary evidentiary basis for termination. This required the applicant to demonstrate that significant changes in circumstances had occurred since the agreement was made, impacting the conditions of employment. The Commission considered the nature and extent of these changes and their implications for the continued operation of the agreement. Additionally, the Commission assessed the application of the statutory criteria, ensuring the applicant had provided adequate evidence to support the claim for termination.

After careful consideration of the evidence presented, the Fair Work Commission concluded that the applicant had met the evidentiary requirements for the termination of the enterprise agreement. The Commission found that significant changes in circumstances had indeed occurred, affecting the terms and conditions of employment. These changes included shifts in the operational environment and workforce dynamics, which rendered the existing agreement less effective and equitable. Based on these findings, the Commission granted the application, resulting in the termination of the enterprise agreement.

The Commission's decision was grounded in the statutory provisions and the specific circumstances presented in the case. The termination of the agreement will now allow the parties to negotiate a new agreement that better reflects the current operational realities and the needs of the workforce. This outcome underscores the importance of adaptability in enterprise agreements and the role of the Fair Work Commission in overseeing their fair and effective operation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established