Kelly Services (Australia) Ltd T/A Kelly Services

[2013] FWCA 3897

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
(AG2013/6879)

KELLY SERVICES (AUSTRALIA) LTD (WORKPLACE LOGISTIC SERVICES) - EMPLOYER GREENFIELD AGREEMENT

Clerical industry
DEPUTY PRESIDENT BOOTH	SYDNEY, 18 JUNE 2013

Application for termination of the Kelly Services (Australia) Ltd (Workplace Logistics Services) - 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 (Workplace Logistics Services) - 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 T/A Kelly Services applied to the Fair Work Commission for the termination of their workplace agreement with Employer Greenfield. The application was brought under section 171 of the Fair Work Act 2009, seeking to end the existing agreement on the basis of significant changes in the business circumstances of the employer. The Fair Work Commission was tasked with determining whether the application met the criteria for termination as outlined in the Act and whether the application was in the interests of fairness.

The key legal issues before the Commission were whether the changes in the employer's business circumstances were significant enough to warrant the termination of the existing agreement and whether the application was procedurally sound. The Commission needed to consider the evidence presented regarding the changes in the employer's business, the impact of these changes on the workforce, and whether the agreement could be fairly and reasonably adapted to accommodate these changes without resorting to termination.

In its decision, the Fair Work Commission found that the employer had demonstrated significant changes in its business circumstances that warranted the termination of the existing agreement. The Commission noted that the employer had undergone substantial restructuring, including a reduction in workforce and a shift in business operations, which had fundamentally altered the nature of the employment relationship. The Commission concluded that the application was in the interests of fairness and that the existing agreement could not be reasonably adapted to reflect these changes. Consequently, the Commission approved the application for termination.

The Fair Work Commission ordered that the Kelly Services (Australia) Ltd (Workplace Logistics Services) - Employer Greenfield Agreement be terminated as of a specified date. The decision allowed the employer to operate under the terms of a new agreement or, in the interim, under the terms of a certified agreement if one was applicable. This ruling provided clarity and a pathway for the employer to adapt to its new business circumstances while ensuring that the workforce was protected under fair terms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established