Kelly Services (Australia) Ltd

[2013] FWCA 4341

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
(AG2013/7289)

KELLY SERVICES (AUSTRALIA) LTD - TIMBER AND ALLIED INDUSTRIES - CASUAL EMPLOYEES - (VICTORIA) - EMPLOYER GREENFIELD AGREEMENT

Timber and paper products industry
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 3 JULY 2013

Application for termination of the Kelly Services (Australia) Ltd - Timber and Allied Industries - Casual Employees - (Victoria) - Employer Greenfield Agreement; labour hire employees.

[1] On 28 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 - Timber and Allied Industries - Casual Employees - (Victoria) - Employer Greenfield Agreement (AP800937CRV) (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 3 July 2013.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Kelly Services (Australia) Ltd was the subject of an application by the Australian Manufacturing Workers' Union for the termination of the Kelly Services (Australia) Ltd - Timber and Allied Industries - Casual Employees - (Victoria) - Employer Greenfield Agreement. The court was tasked with determining whether the agreement was still fit for purpose and if the application should be granted. The legal issues that needed to be resolved included whether the agreement was no longer fit for purpose and if the application for its termination should be granted. The court examined the purpose of the agreement, the changes in the industry, and the interests of the employees. The court found that the agreement was no longer fit for purpose as it did not adequately address the changing nature of the industry and the interests of the employees. The court considered that the agreement failed to provide appropriate protections and benefits to the labour hire employees, who were the primary subject of the agreement. As a result, the court decided that the application for termination should be granted, recognising the need for a new agreement that better reflects the current industrial landscape and protects the rights of the employees. The court ordered the termination of the existing agreement, paving the way for the negotiation of a new agreement that would more effectively address the needs and interests of the labour hire employees within the timber and allied industries in Victoria.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established