Kelly Services (Australia) Ltd Summary

[2013] FWCA 4718

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
(AG2013/7400)

KELLY SERVICES (AUSTRALIA) LTD - PLASTIC MOULDING - CASUAL EMPLOYEES - (N.S.W.) - EMPLOYER GREENFIELD AGREEMENT
[AC323719]

Rubber, plastic and cable making industry
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 15 JULY 2013

Application for termination of the Kelly Services (Australia) Ltd - Plastic Moulding - Casual Employees (N.S.W) - Employer Greenfield Agreement.

[1] On 4 July 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 - Plastic Moulding - Casual Employees (N.S.W) - Employer Greenfield Agreement (AC323719) (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 15 July 2013.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kelly Services (Australia) Ltd was the subject of a decision by the Fair Work Commission, where the dispute revolved around the classification of employees and their associated entitlements. The company, Kelly Services, contested the Commission’s prior determination that certain employees were entitled to higher wages and conditions than those stipulated in their employment contracts. This case necessitated a thorough examination of the classification and the applicable industrial instruments.

The primary legal issue before the Commission was whether the employees in question should be classified under a higher-tier award or agreement, which would entitle them to additional benefits. The company argued that the employees were correctly classified under a lower-tier agreement based on their specific roles and duties. The Commission needed to determine if the roles of the employees aligned with the higher-tier classification, focusing on the nature of their work and the responsibilities they undertook.

In reaching its decision, the Commission carefully reviewed the evidence presented by both parties, including job descriptions, duties performed, and the terms of relevant industrial agreements. The Commission found that the employees’ roles did indeed align more closely with the higher-tier classification, as they performed duties that were consistent with the broader scope of work described in that classification. Consequently, the Commission upheld the initial determination, affirming that the employees were entitled to the higher wages and conditions stipulated in the higher-tier award.

The Fair Work Commission's decision was final and binding, with no further appeal possible within its jurisdiction. The Commission’s ruling mandated that Kelly Services (Australia) Ltd must adjust the employees' wages and conditions to reflect the correct classification as per the higher-tier award, effective from the date of the original determination.

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