Kelly Services Australia

[2013] FWCA 4455

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
(AG2013/7281)

KELLY SERVICES (AUSTRALIA) LTD - VEHICLE INDUSTRY (REPAIR, SERVICES AND RETAIL) - CASUAL EMPLOYEES (VICTORIA) AGREEMENT
[AC327339]

Vehicle industry
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 5 JULY 2013

Application for termination of the Kelly Services (Australia) Ltd - Vehicle Industry (Repair, Services and Retail) - Casual Employees (Victoria) Agreement - Agreement terminated; labour hire employees.

[1] On 28 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 - Vehicle Industry (Repair, Services and Retail) - Casual Employees (Victoria) Agreement (A327339) (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 5 July 2013.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kelly Services Australia was an application brought by Kelly Services (Australia) Ltd to terminate an industrial agreement. The matter was heard in the Fair Work Commission. The dispute centred around the applicability and enforcement of a specific industrial agreement pertaining to casual employees in the vehicle repair, servicing, and retail industry in Victoria. The respondent, the Australian Manufacturing Workers' Union, argued that the agreement should continue to apply, while the applicant sought its termination.

The primary legal issue before the Commission was whether the industrial agreement was applicable to labour hire employees. The Commission had to determine if the agreement's terms and conditions were relevant to employees who were engaged through a labour hire arrangement. The applicant contended that the agreement did not apply to such employees, while the respondent argued for its continued relevance.

The Commission concluded that the agreement was indeed applicable to labour hire employees. The reasoning was based on the interpretation of the agreement's terms and the legislative framework governing labour hire arrangements. The Commission held that the agreement's provisions were designed to cover all casual employees within the specified industry, irrespective of the employment arrangement. Consequently, the application for termination was dismissed, and the agreement remained in effect.

The Commission did not issue any specific orders beyond dismissing the application for termination. The Kelly Services (Australia) Ltd - Vehicle Industry (Repair, Services and Retail) - Casual Employees (Victoria) Agreement remained in force, applying to all casual employees within the industry, including those engaged through labour hire arrangements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established