Kelly Services (Australia) Ltd Summary

[2013] FWCA 4572

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
(AG2013/7334)

KELLY SERVICES (AUSTRALIA) LTD - VEHICLE INDUSTRY (REPAIR, SERVICES AND RETAIL) - CASUAL EMPLOYEES - (WESTERN AUSTRALIA) AGREEMENT

(AC321885)

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 (Western Australia) 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 (Western Australia) Agreement (AC321885) (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 the Kelly Services (Australia) Ltd - Vehicle Industry (Repair, Services and Retail) - Casual Employees (Western Australia) Agreement. The Fair Work Commission heard the application and was required to consider whether the change in the nature of work undertaken by casual employees, as a result of technological advancements, constituted a substantial change in the business operations of the employer. The Commission needed to assess whether such a change warranted the termination of the existing agreement, given the potential impact on the terms and conditions of employment for the casual employees.

The Commission examined the evidence presented by Kelly Services (Australia) Ltd regarding the significant changes in the nature of work due to technological advancements. It considered the extent to which these changes affected the business operations and whether they were substantial enough to warrant the termination of the existing agreement. The Commission also evaluated the impact of these changes on the terms and conditions of employment for the casual employees and the need for adjustments to the agreement to reflect the altered work environment.

After thorough consideration of the evidence and arguments presented, the Commission found that the changes in the nature of work due to technological advancements did constitute a substantial change in the business operations of the employer. Consequently, the Fair Work Commission decided that the existing agreement should be terminated, allowing for the negotiation of a new agreement that better reflects the current work environment and the needs of both the employer and the employees. The decision recognises the evolving nature of work and the importance of adapting employment agreements to accommodate such changes.

The Fair Work Commission ordered the termination of the Kelly Services (Australia) Ltd - Vehicle Industry (Repair, Services and Retail) - Casual Employees (Western Australia) Agreement, effective from the date of the decision. This decision allows for the negotiation of a new agreement that appropriately addresses the changes in the nature of work and the impact on the terms and conditions of employment for the casual employees.

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