Kelly Services (Australia) Ltd

[2013] FWCA 7719

The attached document replaces the document previously issued with the code [2013] FWC 5635 on 12 September 2013.

This decision was published with incorrect reference numbers.

Emma Laurie-Rhodes

Associate to Vice President Watson

Dated 2 October 2013

[2013] FWCA 7719

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 for termination of 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

The matter before the court involved Kelly Services (Australia) Ltd and a group of casual employees from the graphic arts and printing industry in Victoria. The applicant sought to terminate the existing industrial agreement, citing changes in the industry and workforce needs as grounds for the application. The respondents, the employees, contested the termination, arguing that it would adversely affect their employment conditions and security.

The primary legal issue before the court was whether the changes in the industry and workforce needs were sufficient to justify the termination of the existing agreement. The court had to balance the employer's right to manage their business against the rights and protections afforded to employees under the applicable industrial legislation. This required an examination of whether the changes proposed by the applicant were significant enough to warrant a departure from the existing agreement.

The court carefully considered the evidence presented by both parties. It acknowledged the evolving nature of the graphic arts and printing industry and the impact of technological advancements and changes in workforce demands. However, the court found that the proposed changes did not reach the threshold necessary to justify a termination of the existing agreement. The court emphasised the importance of maintaining stable employment conditions and the need for any changes to be negotiated in good faith with the employees. Consequently, the court dismissed the application for termination, upholding the existing agreement.

As a result of the court's decision, the existing industrial agreement between Kelly Services (Australia) Ltd and the casual employees from the graphic arts and printing industry in Victoria remained in effect. The court's ruling underscored the significance of maintaining fair and stable employment conditions, particularly in light of industry changes, and the importance of good faith negotiations in any future modifications to the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established