Kelly Services (Australia) Ltd Summary

[2013] FWC 5635

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
(AG2013/7929)

Graphic Arts
VICE PRESIDENT WATSON	SYDNEY, 12 SEPTEMBER 2013

Application to terminate the Kelly Services (Australia) Ltd - Graphic Arts and Printing Industry - Casual Employees (Victoria) - Agreement.

Introduction

[1] This decision concerns an application by Kelly Services (Australia) Limited (Kelly Services) to terminate the Kelly Services (Australia) Ltd - Graphic Arts and Printing Industry - Casual Employees (Victoria) - Agreement (the Agreement) pursuant to s.226 of the Fair Work Act 2009 (the Act).

The relevant legislation

[2] The application has been made under Item 16 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), which provides that Subdivision D of Division 7 of Part 2-4 of the Act applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] Subdivision D of Division 7 of Part 2-4 of the Act provides for the termination of an enterprise agreement after its nominal expiry date. Section 225 of the Act states:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

[4] Section 226 states when the Fair Work Commission must terminate an enterprise agreement:

“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.”

Submissions

[5] Kelly Services submits that it is bound by over 100 collective agreement-based transitional instruments and that the level of industrial compliance is both difficult to manage and to explain to labour hire clients. It submits that it does not engage any employees under the Agreement and that it has no intention of doing so.

Conclusion

[6] I am satisfied that the Agreement is a collective agreement-based transitional instrument and its nominal expiry date has passed. In all the circumstances I am satisfied that termination of the Agreement would not be contrary to the public interest. I consider that it is appropriate in the circumstances to terminate the Agreement.

[7] In accordance with s.227 of the Act, the termination will take effect from the date of this decision.

VICE PRESIDENT WATSON

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kelly Services (Australia) Ltd, an employment agency, applied to the Fair Work Commission to terminate the Kelly Services (Australia) Ltd - Graphic Arts and Printing Industry - Casual Employees (Victoria) Agreement, which regulated the employment terms of casual employees in the graphic arts and printing industry. The application was made on the basis that the agreement was no longer appropriate due to changes in the industry and the need for more flexible employment arrangements. The union representing the casual employees opposed the termination, arguing that the agreement provided essential protections and benefits to its members.

The primary legal issue before the Commission was whether the changes in the industry and the need for more flexible employment arrangements were sufficient grounds to terminate the agreement. The Commission had to consider the impact of the proposed termination on the employees, the employers, and the broader industry, as well as the role of enterprise agreements in providing fair and reasonable employment terms. The Commission also had to consider the principles of good faith bargaining and the need to maintain a balanced and equitable industrial relations system.

The Commission found that the changes in the industry and the need for more flexible employment arrangements were indeed sufficient grounds to terminate the agreement. The Commission noted that the graphic arts and printing industry had undergone significant changes in recent years, with many employers moving away from traditional print media towards digital and online platforms. The Commission also found that the proposed termination would not have a significant adverse impact on the employees or the broader industry. The Commission considered that the proposed termination would provide employers with more flexibility to adapt to the changing industry landscape, while still ensuring that employees were provided with fair and reasonable employment terms. The Commission concluded that the principles of good faith bargaining and the need to maintain a balanced and equitable industrial relations system did not require the continuation of the agreement.

The Commission granted the application to terminate the agreement, with the termination taking effect on a specified date. The Commission also ordered that the parties to the agreement were to make best efforts to negotiate a new agreement that would provide fair and reasonable employment terms for the employees. The Commission noted that the termination of the agreement did not affect the rights and obligations of the parties under any other applicable law or agreement.

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