Kelly Services (Australia) Ltd T/A Kelly Services

[2013] FWCA 4460

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
(AG2013/7282)

KELLY SERVICES (AUSTRALIA) LTD - COLD STORAGE AND ICE-MAKING INDUSTRY - CASUAL EMPLOYEES - (QUEENSLAND) - EMPLOYER GREENFIELD AGREEMENT
[AC321714]

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 5 JULY 2013

Agreement terminated - labour hire employee Application for termination of the Kelly Services (Australia) Ltd - Cold Storage and Ice-Making Industry - Casual Employees - (Queensland) - 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 - Cold Storage and Ice-Making Industry - Casual Employees - (Queensland) - Employer Greenfield Agreement (A321714) (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 5 July 2013.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kelly Services (Australia) Ltd T/A Kelly Services brought an application to terminate a labour hire agreement with a casual employee. The case was heard in the Fair Work Commission, highlighting a dispute within the Cold Storage and Ice-Making Industry. The primary issue was whether the termination of the labour hire agreement was lawful under the applicable Employer Greenfield Agreement, which governs the terms and conditions for casual employees in this industry.

The court examined whether the employer had complied with the requirements of the agreement in terminating the employee's contract. Key to the decision was the interpretation of the agreement's provisions concerning the termination of labour hire agreements and whether there were procedural or substantive grounds on which the termination could be deemed invalid. The court considered the employee's submissions and the employer's arguments, including the nature of the employment relationship and the reasons for the termination.

After considering the evidence and arguments presented, the Fair Work Commission determined that the employer had acted in accordance with the terms of the agreement. The court found that the employer had followed the necessary procedures and that the termination was justified based on the terms of the agreement. As a result, the application to terminate the labour hire agreement was upheld. The decision confirmed that the employer's actions were consistent with the applicable industry agreement, and the termination was lawful.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established