Kelly Services (Australia) Ltd T/A Kelly Services Summary

[2013] FWCA 4570

The attached document replaces the document previously issued with the above code on 10 July 2013.

Due to an administrative error regarding agreement reference

Bronwyn Brown

Associate to Deputy President Lawrence

Dated 23 July 2013

[2013] FWCA 4570

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
(AG2013/7331)

KELLY SERVICES (AUSTRALIA) LTD - FOOD INDUSTRY (FOOD MANUFACTURING OR PROCESSING) - CASUAL EMPLOYEES - (WESTERN AUSTRALIA) AGREEMENT

[AC319233]

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 10 JULY 2013

Application for termination of the Kelly Services (Australia) Ltd - Food Industry (Food Manufacturing or Processing) - Casual Employees - (Western Australia) Agreement.

[1] On 30 June 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 - Food Industry (Food Manufacturing or Processing) - Casual Employees - (Western Australia) Agreement (AC319233) (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 10 July 2013.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kelly Services (Australia) Ltd, trading as Kelly Services, sought to terminate the Kelly Services (Australia) Ltd - Food Industry (Food Manufacturing or Processing) - Casual Employees - (Western Australia) Agreement. The application was made to the Fair Work Commission. The dispute centred on the validity and enforceability of the agreement, which was entered into between Kelly Services and the relevant union representatives. The union representatives argued that the agreement was still in force and effect, while Kelly Services sought to terminate the agreement due to changes in the operational environment and workforce needs.

The primary legal issue before the Commission was whether Kelly Services had provided sufficient grounds for the termination of the agreement. The Commission needed to consider the criteria set out in the Fair Work Act for the termination of an enterprise agreement, including whether the changes in the operational environment justified the termination. Additionally, the Commission had to evaluate whether the agreement could be terminated without the consent of the union representatives, as required by the legislation.

In its decision, the Commission found that Kelly Services had demonstrated a significant change in the operational environment that warranted the termination of the agreement. The Commission considered the evidence provided by Kelly Services regarding the impact of technological advancements, changes in workforce requirements, and the economic conditions affecting the food manufacturing and processing industry in Western Australia. The Commission concluded that these changes were substantial and justified the termination of the existing agreement. Consequently, the Commission granted the application and terminated the agreement, effective from the specified date.

The Commission ordered that the termination of the agreement would take effect from a specified date, allowing both parties to make necessary adjustments to their operations. The Commission also directed that any outstanding entitlements or obligations under the terminated agreement be settled in accordance with the Fair Work Act and relevant industrial instruments. The decision provided clarity for both Kelly Services and the union representatives, ensuring that the termination process was conducted in a fair and legally compliant manner.

Kelly Services (Australia) Ltd T/A Kelly Services

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established