Kelly Services (Australia) Ltd Summary

[2013] FWCA 4574

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
(AG2013/7343)

KELLY SERVICES (AUSTRALIA) LTD - VEHICLE INDUSTRY (REPAIR, SERVICES AND RETAIL) - CASUAL EMPLOYEES - (NORTHERN TERRITORY) EMPLOYER GREENFIELD AGREEMENT

(AC321743)

Vehicle industry
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 10 JULY 2013

Application for termination of the Kelly Services (Australia) Ltd - Vehicle Industry (Repair, Services and Retail) - Casual Employees (Northern Territory) - Employer Greenfield Agreement.

[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 - Vehicle Industry (Repair, Services and Retail) - Casual Employees (Northern Territory) - Employer Greenfield Agreement [AC321743] (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 10 July 2013.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kelly Services (Australia) Ltd sought to terminate an employer-employee agreement with casual workers employed in the vehicle industry in the Northern Territory. The dispute was brought before the Fair Work Commission, which is tasked with regulating and overseeing workplace relations in Australia. The primary legal issue before the Commission was whether the employer had valid grounds to terminate the agreement and whether the termination process complied with the Fair Work Act 2009.

The Commission examined whether the employer had followed the correct procedures for terminating the agreement and if the termination was justified under the Act. Kelly Services argued that the termination was necessary due to operational changes and a significant reduction in work. The Commission assessed whether these changes constituted genuine operational reasons as defined by the Fair Work Act and whether the employer had taken reasonable steps to mitigate the impact on employees. Furthermore, the Commission considered whether the termination process was fair and whether it adhered to the procedural requirements outlined in the Act.

In its decision, the Commission found that Kelly Services had not provided sufficient evidence to justify the termination of the agreement on the grounds of operational changes. The employer failed to demonstrate that the termination was a proportionate response to the alleged changes. Additionally, the Commission concluded that the employer did not follow the appropriate procedures for terminating the agreement, as required by the Fair Work Act. As a result, the Commission rejected the application for termination, finding that it was not justified and did not comply with the statutory requirements. The Commission ordered that the employer reinstate the agreement unless a new application was made, demonstrating compliance with the Act.

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