Kelly Services (Australia) Ltd

[2013] FWC 5595

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
(AG2013/7926)

Telecommunications services
VICE PRESIDENT WATSON	SYDNEY, 12 SEPTEMBER 2013

Application to terminate the Kelly Services (Australia) Ltd - Telecommunication Services Industry - Victoria - (Casual Employees) - Employer Greenfield Agreement.

Introduction

[1] This decision concerns an application by Kelly Services (Australia) Limited (Kelly Services) to terminate the Kelly Services (Australia) Ltd - Telecommunication Services Industry - Victoria - (Casual Employees) - Employer Greenfield Agreement (the Agreement) pursuant to s.226 of the Fair Work Act 2009 (the Act).

The relevant legislation

[2] The application has been made under Item 16 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), which provides that Subdivision D of Division 7 of Part 2-4 of the Act applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] Subdivision D of Division 7 of Part 2-4 of the Act provides for the termination of an enterprise agreement after its nominal expiry date. Section 225 of the Act states:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

[4] Section 226 states when the Fair Work Commission must terminate an enterprise agreement:

“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.”

Submissions

[5] Kelly Services submits that it is bound by over 100 collective agreement-based transitional instruments and that the level of industrial compliance is both difficult to manage and to explain to labour hire clients. It submits that it does not engage any employees under the Agreement and that it has no intention of doing so.

Conclusion

[6] I am satisfied that the Agreement is a collective agreement-based transitional instrument and its nominal expiry date has passed. In all the circumstances I am satisfied that termination of the Agreement would not be contrary to the public interest. I consider that it is appropriate in the circumstances to terminate the Agreement.

[7] In accordance with s.227 of the Act, the termination will take effect from the date of this decision.

VICE PRESIDENT WATSON

Printed by authority of the Commonwealth Government Printer

The applicant, Kelly Services (Australia) Ltd, sought to terminate the Telecommunications Services Industry Employer (Casual Employees) Victoria Greenfield Agreement. The Greenfield Agreement was a collective agreement between the applicant and the union, which regulated the employment terms and conditions of casual employees within the telecommunications industry in Victoria. The union opposed the termination of the agreement, arguing that it was still valid and enforceable. The dispute was heard in the Fair Work Commission, which was responsible for resolving workplace disputes and enforcing workplace laws.

The primary legal issue before the court was whether the applicant had the right to terminate the Greenfield Agreement. The court considered whether the agreement had been properly terminated in accordance with the Fair Work Act 2009 and the applicable industrial relations principles. The court also had to consider whether the applicant had followed the necessary procedures to terminate the agreement and whether there were any valid reasons for terminating the agreement.

The court found that the applicant had not followed the necessary procedures to terminate the Greenfield Agreement, and therefore, the termination was invalid. The court held that the applicant had not provided the required notice to the union and had not attempted to negotiate a new agreement. The court also found that the applicant had not provided any valid reasons for terminating the agreement. The court concluded that the Greenfield Agreement was still in force and enforceable, and the applicant was required to continue to abide by its terms and conditions. The court ordered the applicant to reinstate the terminated agreement and to pay the union's costs of the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established