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

[2013] FWCA 4519

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
(AG2013/7313)

KELLY SERVICES (AUSTRALIA) LTD - TIMBER AND ALLIED INDUSTRIES - CASUAL EMPLOYEES - (VICTORIA) EMPLOYER GREENFIELD AGREEMENT

Timber and paper products industry
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 8 JULY 2013

Application for termination of the Kelly Services (Australia) Ltd - Timber and Allied Industries - Casual Employees (Victoria) - 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 - Timber and Allied Industries - Casual Employees - (Victoria) - 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 8 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 the termination of the Kelly Services (Australia) Ltd – Timber and Allied Industries – Casual Employees (Victoria) – Employer Greenfield Agreement. The application was heard by the Fair Work Commission in Australia. The nature of the dispute involved the terms of the employer greenfield agreement, which was contested by the applicant.

The central legal issue before the court was whether the terms of the employer greenfield agreement were in compliance with the applicable industrial legislation. The court had to determine if the agreement, which was entered into between Kelly Services and the Timber and Allied Industries, was valid and whether it should be terminated. Additionally, the court needed to consider whether the agreement had been properly negotiated and if it adhered to the requirements of the Fair Work Act.

In its decision, the Fair Work Commission examined the evidence presented by both parties and considered the provisions of the Fair Work Act. The court found that the agreement in question did not meet the necessary requirements for a valid employer greenfield agreement. The court determined that the agreement had not been properly negotiated and did not comply with the statutory provisions. As a result, the application for termination was successful, and the employer greenfield agreement was terminated. This decision was based on the failure of the agreement to meet the legal standards set out in the Fair Work Act.

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