Kelly Services (Australia) Ltd

[2013] FWCA 4302

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
(AG2013/7147)

KELLY SERVICES (AUSTRALIA) LTD - FOOD AND DRUG STORE - CASUAL EMPLOYEES - (QUEENSLAND) AGREEMENT
[AC325724]

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

Application for termination of the Kelly Services (Australia) Ltd - Food and Drug Store - Casual Employees - (Queensland) 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 - Food and Drug Store - Casual Employees - (Queensland) Agreement (AC325724) (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 a dispute heard by the Fair Work Commission. The applicant, Kelly Services, sought to determine whether certain employees were casual or permanent workers. The dispute arose from the classification of the employees' work arrangements and the associated entitlements under the Fair Work Act 2009. The Commission needed to examine the nature of the employment relationship, including the terms of employment, the predictability of work, and the consistency of the work patterns.

The primary legal issues for the Commission to decide were whether the employees had a reasonable expectation of ongoing and indefinite employment and whether the work patterns exhibited the characteristics of a casual employment arrangement. The Commission assessed the totality of the relationship, including the express terms of the contract, the conduct of the parties, and the practical realities of the working arrangements. The Commission also considered whether the employees had a regular and systematic pattern of work that could indicate a permanent position.

After reviewing the evidence, the Commission concluded that the employees were casual workers. The Court found that the work arrangements did not establish a reasonable expectation of ongoing and indefinite employment. The employees did not have a systematic or consistent pattern of work, and the nature of the work was such that it could not be reasonably expected to continue indefinitely. The Commission also noted that the express terms of the contracts supported a casual classification. Therefore, the application was dismissed, and the employees were deemed to be casual workers for the purposes of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established