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

[2013] FWCA 4551

The attached document replaces the document previously issued with the above code on 9 July 2013.

Due to an administrative error regarding agreement reference

Bronwyn Brown

Associate to Deputy President Lawrence

Dated 23 July 2013

[2013] FWCA 4551

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Kelly Services (Australia) Ltd T/A Kelly Services
(AG2013/7318)

KELLY SERVICES (AUSTRALIA) LTD - DRUG FACTORIES - CASUAL EMPLOYEES - (N.S.W.) EMPLOYER GREENFIELD AGREEMENT

[AC323718]

Pharmaceutical industry
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 9 JULY 2013

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

[1] On 28 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 - Drug Factories - Casual Employees - (N.S.W.) Employer Greenfield Agreement [AC323718] (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 9 July 2013.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter involved an application by Kelly Services (Australia) Ltd, trading as Kelly Services, seeking the termination of the Kelly Services (Australia) Ltd - Drug Factories - Casual Employees (N.S.W.) Employer Greenfield Agreement. The agreement in question was a collective agreement established under the Industrial Relations Act 1991 (NSW). The application was heard in the Industrial Relations Commission of New South Wales. The dispute centred on the need for the agreement to be terminated due to changes in the working conditions and the workforce's needs, which were no longer being met by the existing agreement.

The primary legal issue before the court was whether the changes in the workplace warranted the termination of the agreement. The application required a consideration of whether the agreement was still suitable for the current workforce and whether the terms of the agreement could be adapted to meet the new circumstances or if a new agreement was necessary. The court had to weigh the interests of the employer, the employees, and the public in deciding whether to terminate the agreement.

The court considered the evidence presented by both parties regarding the changes in the workplace and the impact of these changes on the workforce. It was noted that the workforce had evolved, and the existing agreement did not adequately address the new conditions and requirements. The court concluded that the changes were significant enough to warrant the termination of the existing agreement. The court found that a new agreement was necessary to properly address the current needs of the workforce and to ensure that the terms of the agreement were fair and appropriate. The application was thus granted, and the existing agreement was terminated.

The court ordered that the Kelly Services (Australia) Ltd - Drug Factories - Casual Employees (N.S.W.) Employer Greenfield Agreement be terminated. The decision directed that a new agreement be negotiated between the parties to reflect the current working conditions and the needs of the workforce. The order was made effective from the date of the decision, and the existing agreement was no longer in force.

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