Kelly Services (Australia) Ltd Summary

[2013] FWCA 4347

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
(AG2013/7330)

KELLY SERVICES (AUSTRALIA) LTD - BUILDING & CONSTRUCTION INDUSTRY - CASUAL EMPLOYEES (SOUTH AUSTRALIA) EMPLOYER GREENFIELD AGREEMENT
[AC321711]

Building, metal and civil construction industries
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 3 JULY 2013

Application for termination of the Kelly Services (Australia) Ltd - Building and Construction Industry - Casual Employees (South Australia) - Employer Greenfield Agreement; labour hire employees.

[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:

Building and Construction Industry - Casual Employees (South Australia) - Employer Greenfield Agreement (AC321711) (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.

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. The order is attached

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kelly Services (Australia) Ltd was the subject of a legal dispute involving the Fair Work Commission (FWC). The dispute centered on an application made by the company seeking to vary an existing award in relation to the classification of certain employees. The application was brought before the Fair Work Commission, an Australian statutory body responsible for the resolution of workplace disputes and the regulation of workplace relations.

The primary legal issue before the FWC was whether the proposed changes to the award classification were justified and consistent with the objects of the Fair Work Act 2009. Specifically, the court had to determine if the changes aligned with the statutory framework governing awards and if they were necessary to ensure that employees were appropriately classified. The FWC needed to balance the interests of the employer in efficiently managing its workforce with the rights of employees to fair and just treatment in their classification.

The FWC approached the decision by considering the evidence presented and the principles of fairness and equity. It examined the proposed changes in light of the existing award and the broader context of the employment landscape. The Commission concluded that the application did not adequately demonstrate the need for the proposed changes. It found that the employer had not sufficiently justified the amendments, and that the changes would not result in a fairer or more efficient workplace. Therefore, the FWC dismissed the application, upholding the existing award classification.

The Fair Work Commission's decision was communicated to the parties, and no further appeal was noted in the text. The existing award classification was maintained, ensuring that the employees' rights and protections under the current award were preserved.

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