Kelly Services (Australia) Ltd T/A Kelly Services

[2013] FWCA 4871

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 T/A Kelly Services
(AG2013/7332)

KELLY SERVICES (AUSTRALIA) LTD - RUBBER AND PLASTIC INDUSTRY - CASUAL EMPLOYEES - (WESTERN AUSTRALIA) - EMPLOYER GREENFIELD AGREEMENT

Manufacturing and associated industries
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 19 JULY 2013

Application for termination of the Kelly Services (Australia) Ltd - Rubber and Plastic Industry - Casual Employees (Western Australia) - Employer Greenfield Agreement.

[1] On 1 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 - Rubber and Plastic Industry - Casual Employees - (Western Australia) - 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 19 July 2013.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kelly Services (Australia) Ltd, trading as Kelly Services, applied for termination of the employer Greenfield agreement in the Fair Work Commission. The agreement applied to casual employees within the rubber and plastic industry in Western Australia. The primary dispute centred on the validity and enforceability of the agreement, with Kelly Services arguing that changes in the business environment necessitated the termination of the agreement to allow for more flexibility in managing their workforce.

The legal issues before the Commission involved assessing whether the changes in the business environment were significant enough to warrant the termination of the existing agreement. The Commission had to consider whether the application met the statutory criteria for terminating an agreement under the Fair Work Act 2009. This included evaluating whether the changes were unforeseeable, whether they would significantly alter the operation of the business, and whether the termination was necessary to enable the business to adapt to the changes.

The Commission found that Kelly Services had demonstrated significant changes in their business operations and market conditions that warranted the termination of the existing agreement. The changes were deemed to be unforeseeable and substantial enough to impact the business's ability to operate effectively. The Commission concluded that the application met the statutory requirements for termination, and it was in the best interests of the business and its employees to allow for greater flexibility in managing the workforce.

The Commission approved the termination of the employer agreement, effective from the date specified in the application. The decision allowed Kelly Services to operate with more flexibility, while also providing protections for the employees affected by the changes. The Commission emphasised the importance of balancing the needs of both employers and employees in such complex business environments.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established