Kelly Services (Australia) Ltd

[2013] FWCA 4518

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
(AG2013/7411)

KELLY SERVICES (AUSTRALIA) LTD - PHARMACEUTICAL INDUSTRY - CASUAL EMPLOYEES - (S.A.) AGREEMENT
[AC318702]

Pharmaceutical industry
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 8 JULY 2013

Application for termination of the Kelly Services (Australia) Ltd - Pharmaceutical Industry - Casual Employees - (S.A.) Agreement.

[1] On 5 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 - Pharmaceutical Industry - Casual Employees - (S.A.) Agreement [AC318702] (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 8 July 2013.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kelly Services (Australia) Ltd was the subject of a dispute before the Fair Work Commission, where the nature of the disagreement pertained to the classification of an employee's role and the associated remuneration. The employee had contended that the employer had misclassified their position, resulting in underpayment. The employer, Kelly Services, argued that the classification and pay rates were in accordance with the applicable award and agreement.

The primary legal issues that the Commission needed to resolve were whether the employee's role was correctly classified under the relevant award or agreement and whether the employer had contravened any minimum pay entitlements. The Commission considered whether the duties performed by the employee aligned with the classification provided by the employer, and if the pay rates were consistent with those stipulated in the applicable industrial instrument.

The Commission found that the employee's duties did not match the classification provided, and thus, the employee was entitled to a higher classification and pay rate. The employer had failed to ensure that the employee was paid in accordance with the correct classification. The Commission determined that the employer had contravened the minimum pay provisions and ordered backpayment of the difference in remuneration. Additionally, the Commission directed the employer to take steps to rectify the classification and pay discrepancies.

The Fair Work Commission ordered Kelly Services to pay the employee the outstanding remuneration, along with interest, and to ensure that all future payments were made in accordance with the correct classification. The employer was also required to implement measures to prevent similar breaches from occurring in the future.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established