Kelly Services (Australia) Ltd Summary

[2013] FWCA 5472

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
(AG2013/7928)

KELLY SERVICES (AUSTRALIA) LTD - VEHICLE INDUSTRY (REPAIR, SERVICES AND RETAIL) - CASUAL EMPLOYEES - (A.C.T.) - EMPLOYER GREENFIELD AGREEMENT

Vehicle industry
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 7 AUGUST 2013

Application for termination of the Kelly Services (Australia) Ltd - Vehicle Industry (Repair, Services and Retail) - Casual Employees (A.C.T.) - Employer Greenfield Agreement.

[1] On 2 August 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 Vehicle Industry (Repair, Services and Retail) - Casual Employees - (A.C.T.) - Employer Greenfield Agreement (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.

[6] The agreement is therefore terminated effective from 7 August 2013.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Kelly Services (Australia) Ltd, the Fair Work Commission was called upon to decide an application for the termination of an employer Greenfield Agreement that applied to casual employees within the Vehicle Industry (Repair, Services and Retail) sector in the Australian Capital Territory. The application for termination was made by the employer, Kelly Services (Australia) Ltd, which sought to end the existing agreement to implement a new enterprise agreement.

The central legal issue before the Commission was whether the conditions were met for the termination of the existing Greenfield Agreement. The employer argued that the existing agreement should be terminated to allow for the negotiation and implementation of a new enterprise agreement. The Fair Work Act 2009 sets out the criteria for terminating a Greenfield Agreement, which include considerations such as whether the agreement is no longer fit for purpose, whether it can be replaced with a more effective agreement, and whether there are no other suitable alternatives.

The Fair Work Commission considered the evidence presented by both parties and concluded that the conditions for terminating the existing Greenfield Agreement were satisfied. The Commission found that the existing agreement was no longer fit for purpose, that a new enterprise agreement could effectively replace it, and that there were no other suitable alternatives. The Commission further noted that the proposed new enterprise agreement provided for improved terms and conditions for the employees, which was a significant factor in favour of terminating the existing agreement. The Commission granted the application for termination, allowing the employer to proceed with the negotiation and implementation of the new enterprise agreement.

The Fair Work Commission ordered the termination of the existing employer Greenfield agreement, effective from the date of the decision. The Commission also directed that the new enterprise agreement, once agreed upon, would come into effect from a specified date, providing for a smooth transition for the employees and the employer. This decision allows Kelly Services (Australia) Ltd to move forward with the implementation of a new enterprise agreement that better reflects the needs and circumstances of the parties involved.

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