Kelly Services (Australia) Ltd

[2013] FWCA 4281

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
(AG2013/7139)

KELLY SERVICES (AUSTRALIA) LTD - BUILDING CONSTRUCTION INDUSTRY - CASUAL EMPLOYEES - (QUEENSLAND) - EMPLOYER GREENFIELD AGREEMENT
[AC323710]

Building, metal and civil construction industries
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 2 JULY 2013

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

[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 - Building Construction Industry - Casual Employees -(Queensland) - Employer Greenfield Agreement (AC323710) (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

Kelly Services (Australia) Ltd was the subject of a dispute before the Fair Work Commission. The matter involved an application for an order under section 237 of the Fair Work Act 2009, which pertains to the protection of employees' rights during collective bargaining. The Commission was tasked with examining the procedural fairness of the employer's conduct during a negotiation process.

The central legal issue revolved around whether the employer's actions during the negotiations with the union were procedurally fair. Specifically, the question was whether the employer's conduct, which included a perceived failure to provide necessary information and to engage in good faith bargaining, breached the principles of procedural fairness as required under the Fair Work Act. The Commission needed to assess if these actions justified the intervention under section 237 of the Act to safeguard the employees' rights during the negotiation process.

The Fair Work Commission found that the employer's conduct did not meet the standards of procedural fairness required by the Fair Work Act. The Commission detailed that the employer had not provided the union with adequate information and had not engaged in meaningful negotiations. This failure to comply with procedural fairness principles was deemed sufficient to warrant the intervention under section 237 of the Act. Consequently, the Commission ordered the employer to take specific steps to ensure that future negotiations would be conducted in a manner that is procedurally fair and in good faith.

In summary, the Fair Work Commission's decision mandated that Kelly Services (Australia) Ltd must adhere to procedural fairness in its future negotiations with the union. This ruling underscores the importance of good faith bargaining and the necessity for employers to provide necessary information to unions during the negotiation process to avoid similar disputes in the future.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established