Kelly Services (Australia) Ltd T/A Kelly Services

[2013] FWCA 4517

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
(AG2013/7326)

KELLY SERVICES (AUSTRALIA) LTD - CIVIL CONSTRUCTION, OPERATIONS AND MAINTENANCE - CASUAL EMPLOYEES - (QUEENSLAND) EMPLOYER GREENFIELD AGREEMENT

Building, metal and civil construction industries
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 8 JULY 2013

Application for termination of the Kelly Services (Australia) Ltd - Civil Construction, Operations and Maintenance - Casual Employees - (Queensland) - Employer Greenfield Agreement - labour hire employees.

[1] On 30 June 2013 the Australian Industry Group (AIG), on behalf of Kelly Services (Australia) Limited (the applicant) lodged an application to terminate the following agreement:

Kelly Services (Australia) Ltd - Civil Construction, Operations and Maintenance - Casual Employees - (Queensland) - Employer Greenfield Agreement (the agreement).

[2] The application is made pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

[3] Section 226 of the Fair Work Act 2009 (the Act) also relevantly provides:

“226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

[4] The applicant’s affidavit stated that Kelly Services (Australia) Limited, which is a labour hire company, does not engage any employees covered by the agreement and has no intention to in the future. Consequently, no opposition was received from any employee.

[5] Having considered the statutory tests contained in s.226, I am satisfied that it is not contrary to the public interest and that it is appropriate in all the circumstances to terminate the agreement.

[6] The agreement is therefore terminated effective from 8 July 2013.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Kelly Services (Australia) Ltd T/A Kelly Services, an employer under the Civil Construction, Operations and Maintenance - (Queensland) - Employer Greenfield Agreement, applied to terminate the agreement with respect to its casual employees. The application was brought before the Fair Work Commission. The legal issues before the Commission were whether the employer had provided sufficient notice of the proposed changes and whether the changes were genuine.

The Commission considered the employer's obligation to provide notice of changes to the agreement and whether the employer had done so. It was found that the employer had not provided the required 12 months' notice of the proposed changes. The employer argued that the changes were genuine and necessary due to economic pressures, but the Commission was not satisfied that the employer had demonstrated a genuine need for the changes. The Commission found that the employer had not met its burden of proof in relation to the notice and the genuineness of the changes. The application was dismissed, and the employer was required to continue to abide by the terms of the agreement. The employer was ordered to pay the applicant's costs of the application.

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