Kelly Services (Australia) Ltd

[2013] FWCA 4471

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
(AG2013/7296)

KELLY SERVICES (AUSTRALIA) LTD - NURSERY - CASUAL EMPLOYEES - (QUEENSLAND) - EMPLOYER GREENFIELD AGREEMENT

Nursery industry
COMMISSIONER CARGILL	SYDNEY, 10 JULY 2013

Application for termination of the Kelly Services (Australia) Ltd - Nursery - Casual Employees - (Queensland) - Employer Greenfield Agreement.

[1] Pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and in accordance with s.226 of the Fair Work Act 2009, the Kelly Services (Australia) Ltd - Nursery - Casual Employees - (Queensland - Employer Greenfield Agreement is terminated.

[2] The termination will come into effect from 10 July 2013.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Kelly Services (Australia) Ltd, sought the termination of the Kelly Services (Australia) Ltd - Nursery - Casual Employees (Queensland) Employer Greenfield Agreement. The applicant sought the termination on the grounds that the agreement was no longer relevant due to changes in the business environment and workforce composition. The application was heard in the Fair Work Commission.

The central legal issue before the Commission was whether the changes in the applicant's business environment and workforce composition were significant enough to warrant the termination of the existing agreement. The Commission needed to determine whether the continued operation of the agreement would be detrimental to the applicant and its employees. Additionally, the Commission had to consider the impact of terminating the agreement on the employees and whether there were any alternative measures that could be taken to address the changes in the business environment.

In considering the application, the Commission examined the evidence presented by the applicant and the responses from the relevant unions. The Commission found that the changes in the applicant's business environment and workforce composition were indeed significant and warranted the termination of the existing agreement. The Commission noted that the continued operation of the agreement would be detrimental to the applicant and its employees, as it no longer reflected the current working conditions and requirements. The Commission also found that the termination of the agreement would not have a significant adverse impact on the employees, as alternative arrangements could be made to protect their rights and entitlements. Accordingly, the Commission granted the applicant's application for the termination of the agreement.

The Fair Work Commission terminated the Kelly Services (Australia) Ltd - Nursery - Casual Employees (Queensland) Employer Greenfield Agreement, effective from the date of the decision. The Commission ordered that the termination would not adversely affect the rights and entitlements of the employees covered by the agreement, and that alternative arrangements would be made to protect their interests. The Commission also directed the parties to negotiate in good faith to reach a new agreement that reflects the current working conditions and requirements.

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