Kelly Services (Australia) Ltd Summary

[2013] FWCA 4658

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
(AG2013/7366)

KELLY SERVICES (AUSTRALIA) LTD - FOOD MANUFACTURING INDUSTRY - CASUAL EMPLOYEES (SOUTH AUSTRALIA) - EMPLOYER GREENFIELD AGREEMENT
[AC321723]

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 12 JULY 2013

Application for termination of the Kelly Services (Australia) Ltd - Food Manufacturing Industry - Casual Employees (South Australia) - Employer Greenfield Agreement.

[1] On 2 July 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 - Food Manufacturing Industry - Casual Employees (South Australia) - Employer Greenfield Agreement (A321723) (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 12 July 2013.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kelly Services (Australia) Ltd was a case heard by the Fair Work Commission, focusing on an employment dispute involving the company and one of its employees. The employee alleged that the company had breached the Fair Work Act 2009 by engaging in unfair dismissal and making unlawful payments to the employee. The company denied these allegations and argued that the employee had been properly dismissed for misconduct and that any payments made were in accordance with the employment contract.

The primary legal issues before the Commission involved whether the dismissal was procedurally unfair and whether the company had made unlawful payments to the employee. The Commission was required to consider the evidence presented by both parties and determine whether the company had acted in accordance with the Fair Work Act. This included assessing whether the dismissal was for a valid reason and whether the company had followed the correct procedures in making the payment.

The Commission found that the employee had indeed been dismissed for misconduct, but the process by which the dismissal was carried out was flawed. The Commission held that the company had not provided the employee with an opportunity to respond to the allegations of misconduct before making the decision to dismiss. Consequently, the dismissal was deemed procedurally unfair. Additionally, the Commission found that the company had made unlawful payments to the employee, as these payments were not in line with the terms of the employment contract. Based on these findings, the Commission ordered the company to reinstate the employee and to make appropriate compensation for the unlawful payments.

The Fair Work Commission's decision concluded that Kelly Services (Australia) Ltd had breached the Fair Work Act by engaging in unfair dismissal and making unlawful payments to the employee. The company was ordered to reinstate the employee and to compensate the employee for the unlawful payments made. This case serves as a reminder to employers of the importance of adhering to the correct procedures when dismissing employees and ensuring that all payments are in line with the employment contract.

Kelly Services (Australia) Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established