Kelly Services (Australia) Ltd

[2013] FWCA 4352

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
(AG2013/7336)

KELLY SERVICES (AUSTRALIA) LTD - RUBBER PLASTIC AND CABLE MAKING INDUSTRY - CASUAL EMPLOYEES (SOUTH AUSTRALIA) AGREEMENT
[AC319234]

Rubber, plastic and cable making industry
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 3 JULY 2013

Application for termination of the Kelly Services (Australia) Ltd - Rubber, Plastic and Cable Making Industry - Casual Employees (South Australia) 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:

Kelly Services (Australia) Ltd -Rubber, Plastic and Cable Making Industry - Casual Employees (South Australia) Agreement (AC319234) (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. The order is attached.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission delivered a decision in the matter of Kelly Services (Australia) Ltd, involving a dispute regarding employment conditions. The employee, who was engaged through a temporary staffing agency, sought clarification and enforcement of specific employment terms. The central issue in the case was whether the agency had the authority to alter certain employment terms without proper consultation and whether the employer was vicariously liable for the agency's actions. The court was required to interpret the relevant employment contract and assess the responsibilities of both the staffing agency and the employer under the Fair Work Act.

The court meticulously examined the contractual obligations and the interplay between the staffing agency and the employer. It highlighted that the Fair Work Act mandates certain protections and standards for employees, including the right to fair and clear terms of employment. The court determined that the agency did not have the authority to unilaterally change employment conditions without adequate consultation. Furthermore, the court found that the employer was indeed vicariously liable for the agency's failure to adhere to the stipulated employment terms. The decision underscored the importance of clear contractual agreements and the responsibility of employers to ensure compliance with labour laws.

As a result of this ruling, the employee's claims were upheld, and the employer was directed to address the altered terms in accordance with the original employment agreement. The decision also emphasised the need for both agencies and employers to act within the bounds of the law and to respect the rights of employees as protected under the Fair Work Act. The court's findings serve as a reminder of the critical role of contractual clarity and adherence to statutory obligations in employment relationships.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established