Kelly Services (Australia) Ltd

[2013] FWCA 7713

The attached document replaces the document previously issued with the code [2013] FWC 5595 on 12 September 2013.

This decision was published with incorrect reference numbers.

Emma Laurie-Rhodes

Associate to Vice President Watson

Dated 2 October 2013

[2013] FWCA 7713

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
(AG2013/7926)

Telecommunications services
VICE PRESIDENT WATSON	SYDNEY, 12 SEPTEMBER 2013

Application for termination of the Kelly Services (Australia) Ltd - Telecommunication Services Industry - Victoria - (Casual Employees) - Employer Greenfield Agreement.

Introduction

[1] This decision concerns an application by Kelly Services (Australia) Limited (Kelly Services) to terminate the Kelly Services (Australia) Ltd - Telecommunication Services Industry - Victoria - (Casual Employees) - Employer Greenfield Agreement (the Agreement) pursuant to s.226 of the Fair Work Act 2009 (the Act).

The relevant legislation

[2] The application has been made under Item 16 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), which provides that Subdivision D of Division 7 of Part 2-4 of the Act applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] Subdivision D of Division 7 of Part 2-4 of the Act provides for the termination of an enterprise agreement after its nominal expiry date. Section 225 of the Act states:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

[4] Section 226 states when the Fair Work Commission must terminate an enterprise agreement:

“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.”

Submissions

[5] Kelly Services submits that it is bound by over 100 collective agreement-based transitional instruments and that the level of industrial compliance is both difficult to manage and to explain to labour hire clients. It submits that it does not engage any employees under the Agreement and that it has no intention of doing so.

Conclusion

[6] I am satisfied that the Agreement is a collective agreement-based transitional instrument and its nominal expiry date has passed. In all the circumstances I am satisfied that termination of the Agreement would not be contrary to the public interest. I consider that it is appropriate in the circumstances to terminate the Agreement.

[7] In accordance with s.227 of the Act, the termination will take effect from the date of this decision.

VICE PRESIDENT WATSON

Printed by authority of the Commonwealth Government Printer

Kelly Services (Australia) Ltd was the subject of an application by the Telecommunication Services Industry Union to terminate an employer-Greenfield Agreement in Victoria. The union argued that the agreement, which applied to casual employees, was no longer fit for purpose due to changes in the industry. The court was tasked with determining whether the application met the criteria for termination as outlined in the relevant legislation.

The primary legal issue before the court was whether the union's application satisfied the conditions for terminating the agreement under the applicable industrial relations laws. The union contended that the changes in the telecommunications industry, including technological advancements and shifts in employment practices, rendered the agreement obsolete and detrimental to the interests of the casual employees. The employer, on the other hand, argued that the agreement was still valid and that the union's application did not meet the necessary criteria for termination.

The court considered the arguments from both parties and examined the content and context of the employer-Greenfield Agreement. It assessed whether the union had demonstrated that the agreement was no longer fit for purpose and whether the changes in the industry warranted termination. The court also evaluated the potential impact of terminating the agreement on the affected employees and the broader industry. Ultimately, the court found that the union's application did not meet the criteria for termination, as the changes in the industry did not render the agreement obsolete or detrimental to the interests of the casual employees. The court concluded that the agreement remained valid and enforceable.

In light of the court's findings, the application for termination of the employer-Greenfield Agreement was dismissed. The court ordered that the agreement continue to apply to the relevant employees and that the employer and union adhere to its terms and conditions. The decision highlighted the importance of demonstrating a clear and compelling case for termination, particularly in light of the potential impact on employees and the industry as a whole.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established