Kelly Services (Australia) Ltd T/A Kelly Services Summary

[2013] FWCA 3894

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 T/A Kelly Services
(AG2013/6772)

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

Clerical industry
DEPUTY PRESIDENT BOOTH	SYDNEY, 18 JUNE 2013

Application for termination of the Kelly Services (Australia) Ltd - Confectionary Industry - 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 - Confectionary Industry - Casual Employees - (Queensland) Employer Greenfield Agreement is terminated.

[2] The termination will come into effect from 18 June 2013.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kelly Services (Australia) Ltd, trading as Kelly Services, sought the termination of an employer agreement, the Kelly Services (Australia) Ltd - Confectionary Industry - Casual Employees - (Queensland) Employer Greenfield Agreement. The application was heard by the Fair Work Commission (FWC). The crux of the dispute was whether the agreement should be terminated due to the parties no longer being willing or able to meet the agreement's requirements. Kelly Services argued that changes in the business model and the economic landscape had made the agreement unworkable.

The legal issues before the FWC involved interpreting the conditions under which a Greenfield Agreement could be terminated and the extent to which changes in business operations or economic conditions could justify such a termination. The FWC needed to determine if the changes in the business model and economic conditions were sufficient to warrant the termination of the agreement. This involved assessing the mutual willingness and ability of the parties to continue under the terms of the agreement.

The FWC determined that Kelly Services had not demonstrated a sufficient basis to justify the termination of the agreement. The Commission found that while the economic conditions and changes in business operations were significant, they did not irreversibly impair the parties' ability to meet the requirements of the agreement. The evidence presented did not show that the parties were unable or unwilling to continue under the terms of the agreement. Consequently, the application for termination was dismissed.

The FWC did not grant the termination of the agreement and dismissed the application. This decision ensures that the existing terms of the agreement remain in effect unless further changes are proposed and justified under the relevant legal criteria.

Kelly Services (Australia) Ltd T/A Kelly Services

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established