Kelly Services (Australia) Ltd Summary

[2013] FWCA 4393

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
(AG2013/7284)

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

[AC323707]

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 - Tasmania - (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 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 [PR538614] giving effect to this Decision to terminate the Agreement is also issued.

COMMISSIONER

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CaseChat Overview and Summary

The case of Kelly Services (Australia) Ltd involved the applicant, Kelly Services (Australia) Ltd, seeking to terminate an existing enterprise agreement in accordance with the Fair Work Act. The dispute was heard and determined by the Fair Work Commission, an Australian statutory body with jurisdiction over employment-related matters. The primary issue before the court was whether the applicant had established the necessary evidentiary basis to justify the termination of the enterprise agreement, as outlined in Subdivision D of Division 7 of Part 2-4 of the Fair Work Act.

The applicant argued that significant changes in the workplace environment, including the introduction of new technology and alterations to work practices, warranted the termination of the existing agreement. The applicant contended that these changes rendered the current agreement obsolete and necessitated a revised agreement to reflect the new working conditions. The court was required to assess the applicant's evidence and determine whether it met the threshold for termination under the Act. Specifically, the court had to consider whether the changes were significant enough to justify the termination of the existing agreement and whether the applicant had provided sufficient evidence to support its application.

In its decision, the court found that the applicant had indeed established the necessary evidentiary basis for the termination of the enterprise agreement. The court accepted that the changes in the workplace environment, including the introduction of new technology and alterations to work practices, were significant and warranted the termination of the existing agreement. The court also determined that the applicant had provided sufficient evidence to support its application, including detailed information about the changes and their impact on the workforce. As a result, the court granted the applicant's application for termination, and the enterprise agreement was terminated in accordance with the Fair Work Act.

The court's decision was based on a thorough examination of the evidence presented by the applicant and a careful consideration of the legal requirements for terminating an enterprise agreement under the Fair Work Act. The court's findings and conclusions provide valuable guidance for employers seeking to terminate existing agreements in light of significant changes in the workplace environment. The final orders of the court were that the enterprise agreement between the applicant and the relevant employees was terminated, effective from the date of the decision.

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