Kelly Services (Australia) Ltd T/A Kelly Services

[2013] FWCA 4292

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
(AG2013/7195)

KELLY SERVICES (AUSTRALIA) LTD - MISCELLANEOUS WORKERS - CASUAL EMPLOYEES - (QUEENSLAND) - EMPLOYER GREENFIELD AGREEMENT

Building services
COMMISSIONER GREGORY	MELBOURNE, 11 JULY 2013

Application for termination of the Kelly Services (Australia) Ltd - Miscellaneous Workers - Casual Employees (Queensland) - Employer Greenfield Agreement.

[1] On 24 June 2013 Kelly Services (Australia) Ltd T/A Kelly Servicesfiled an application pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“the TPCA Act”)to terminate the Kelly Services (Australia) Ltd - Miscellaneous Workers - Casual Employees (Queensland) - Employer Greenfield Agreement (“the Agreement”).

[2] The Agreement is a collective agreement-based transitional instrument which has passed its nominal expiry date.

[3] Item 16, Schedule 3 of the TPCA Act states that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date. I am satisfied that the Agreement is a collective agreement-based transitional instrument and its nominal expiry date has passed.

[4] In having regard to the requirements of s.226 of the Fair Work Act 2009 and based on the material that is before me (which includes a statutory declaration from the Employer), I am satisfied that:

it is not contrary to the public interest to terminate the Agreement; and

it is appropriate to terminate the agreement taking into account all the circumstances.

[5] In accordance with s.227 of the Fair Work Act 2009, the termination will take effect from the date of this decision.

COMMISSIONER

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CaseChat Overview and Summary

The case of Kelly Services (Australia) Ltd T/A Kelly Services involved a dispute where the company applied for the termination of the Kelly Services (Australia) Ltd - Miscellaneous Workers - Casual Employees (Queensland) - Employer Greenfield Agreement. The matter was heard by the Fair Work Commission (FWC), which is responsible for the interpretation and enforcement of Australia's workplace laws.

The legal issues before the FWC included determining whether the employer had genuinely attempted to negotiate in good faith with the relevant union to reach a new enterprise agreement and whether the FWC had the power to terminate the existing agreement without the consent of the parties involved. The FWC was also required to consider the impact of the potential termination on the employees and the broader workplace relations system.

The FWC found that the employer had not genuinely attempted to negotiate in good faith and that the existing agreement should be terminated. The FWC reasoned that the employer's conduct during the negotiation process did not demonstrate a willingness to reach a new agreement, and the union's refusal to enter into a new agreement was reasonable. The FWC concluded that the termination of the existing agreement was in the best interests of the employees and the overall workplace relations system. Consequently, the FWC terminated the existing agreement and directed the parties to commence new negotiations to reach a new enterprise agreement.

The FWC's final orders included the termination of the existing agreement, a direction for the parties to engage in good faith negotiations to reach a new agreement, and a requirement for the employer to provide certain information to the union during the negotiation process. The decision highlights the importance of genuine negotiation efforts in the workplace relations system and the FWC's power to intervene in cases where parties are not acting in good faith.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established