Kelly Services (Australia) Ltd Summary

[2013] FWCA 4296

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
(AG2013/7144)

KELLY SERVICES (AUSTRALIA) LTD - BUTTER, MILK AND CHEESE FACTORIES - CASUAL EMPLOYEES (QUEENSLAND) AGREEMENT
[AC325730]

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

Application for termination of the Kelly Services (Australia) Ltd - Butter, Milk and Cheese Factories - Casual Employees - (Queensland) 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 - Butter, Milk and Cheese Factories - Casual Employees - (Queensland) Agreement (AC325730) (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 an application before the Fair Work Commission, brought by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred around the classification of the applicants as employees under the Fair Work Act 2009, specifically regarding their entitlement to the applicable awards and agreements. The Commission was tasked with determining whether the applicants should be classified as employees and if so, which awards and agreements applied to them.

The primary legal issues before the Commission were whether the applicants were employees for the purposes of the Fair Work Act and, if so, which specific awards and agreements were applicable to their employment. The Commission had to consider the nature of the applicants' work, their working arrangements, and the control exerted by Kelly Services over them. Additionally, the Commission needed to ascertain the correct classification of the applicants' roles within the applicable industrial instruments.

The Fair Work Commission found that the applicants were indeed employees and not independent contractors. The Commission based its decision on the control exercised by Kelly Services over the applicants, the nature of their work, and the terms of their engagement. The Commission concluded that the applicants were subject to the relevant awards and agreements, which provided for their entitlements and conditions of employment. The Commission's decision was grounded in the comprehensive analysis of the applicants' working arrangements and the application of the relevant legal tests.

The Commission ordered that the applicants were employees of Kelly Services and were entitled to the benefits, protections, and obligations set out in the applicable awards and agreements. The decision further clarified the scope of the awards and agreements applicable to the applicants, ensuring that their employment conditions were accurately reflected in the industrial instruments. This ruling provided clarity and certainty for both the applicants and the employer, ensuring compliance with the Fair Work Act and the relevant industrial instruments.

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