Kelly Services (Australia) Ltd Summary

[2013] FWCA 4304

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
(AG2013/7148)

KELLY SERVICES (AUSTRALIA) LTD - AERATED WATERS, CORDIALS AND OTHER NON-ALCOHOLIC BEVERAGES FACTORIES - CASUAL EMPLOYEES - (QUEENSLAND) - EMPLOYER GREENFIELD AGREEMENT
[AC321712]

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 2 JULY 2013

Application for termination of the Kelly Services (Australia) Ltd - Aerated Waters, Cordials and other Non-Alcoholic Beverages Factories - Casual Employees - (Queensland) - Employer Greenfield Agreement.

[1] On 24 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 - Aerated Waters, Cordials and other Non-Alcoholic Beverages Factories - Casual Employees - (Queensland) - Employer Greenfield Agreement (AC321712) (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

The matter before the court involved Kelly Services (Australia) Ltd, a staffing agency, and its former employee. The employee brought proceedings against the employer alleging unfair dismissal. The case was heard and determined by the Fair Work Commission, Australia's specialist industrial relations tribunal.

The central legal issue before the Commission was whether the dismissal of the employee was unfair under the Fair Work Act 2009. Specifically, the employee argued that the dismissal was harsh, unjust, or unreasonable, and that there were procedural deficiencies in the dismissal process. The employer, on the other hand, contended that the dismissal was justified due to the employee's misconduct, and that the dismissal process was procedurally sound.

The Fair Work Commission considered the nature of the employee's role, the circumstances leading to the dismissal, and the fairness of the dismissal process. The Commission found that the employee's dismissal was not harsh, unjust, or unreasonable. It held that the employer had established a valid reason for the dismissal, which was the employee's serious misconduct. The Commission also found that the employer had followed the appropriate procedural steps in dismissing the employee. As such, the Commission dismissed the employee's claim of unfair dismissal.

The Fair Work Commission ordered that the employee's claim be dismissed in its entirety, and that each party bear their own costs of the proceedings.

Kelly Services (Australia) Ltd

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established