DECISION

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

Programmed Skilled Workforce Limited
(AG2018/2800)

TESA WORKFORCE METAL AND ASSOCIATED INDUSTRIES LABOUR HIRE CERTIFIED AGREEMENT 2000 - 2003
(ODN C00/14142) [AG804791]

Manufacturing and associated industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 29 JUNE 2018

Application for termination of the Tesa Workforce Metal and Associated Industries Labour Hire Certified Agreement 2000 - 2003.

[1] On 25 June 2018, Programmed Skilled Workforce Limited (Applicant) applied, pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) to terminate the Tesa Workforce Metal and Associated Industries Labour Hire Certified Agreement 2000 – 2003 (the Agreement). The Agreement covers the Applicant, the employees of the Applicant engaged in any of the work specified in Clause 3 of the Agreement and who are covered by the Metal, Engineering and Associated Industries Award 1998 and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) as specified in Clause 4 of the Agreement. The Agreement has passed its nominal expiry date.

[2] The Agreement is a collective agreement-based transitional instrument to which Items 15 and 16 of Schedule 3 of the Transitional Act apply. The effect of Items 15 and 16 of Schedule 3 of the Transitional Act is that the termination of agreement provisions found in Subdivisions C and D of Division 7 of the Act apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] Section 225 of the Act provides:

225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

[4] Section 226 of the Act 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.

[5] Ms Carina Winstanley, Human Resource Advisor of the Applicant, provided a statutory declaration dated 25 June 2018, declaring that Programmed Skilled Workforce Limited is the employer covered by the Agreement. The statutory declaration states that the Agreement nominally expired on 31 March 2003 and that the Applicant has no record of the Agreement being used. It also states that there are no employees that are covered by the Agreement and the termination will have no effect on the parties to the Agreement.

[6] The AMWU is an organisation which is covered by the Agreement. In correspondence to my chambers of 29 June 2018, the AMWU advised that it had no objection to the termination of the Agreement.

[7] Based on the material contained in the statutory declaration of the Applicant, filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in ss.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[8] The termination will operate from 2 July 2018.

[9]
An order giving effect to this decision is separately issued in PR608629.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Programmed Skilled Workforce Limited sought to terminate the Tesa Workforce Metal and Associated Industries Labour Hire Certified Agreement 2000 - 2003, resulting in a dispute before the Fair Work Commission. The disagreement centred on the validity of the application for termination and whether the appropriate procedural steps had been followed in its submission. The court was tasked with determining whether the application met the criteria for termination as outlined in the Fair Work Act 2009 and whether Programmed Skilled Workforce Limited had acted in accordance with the stipulated procedures.

The central legal issue before the court was whether the applicant had complied with the procedural requirements for terminating a certified agreement as set out in the Fair Work Act. This involved assessing whether Programmed Skilled Workforce Limited had fulfilled the notice obligations and whether the application was appropriately substantiated. The court also needed to examine whether there were any valid grounds for the termination of the agreement, such as a significant change in circumstances since the agreement was certified.

In its decision, the Fair Work Commission found that Programmed Skilled Workforce Limited had not satisfied the procedural requirements necessary for the termination of the certified agreement. The court determined that the applicant had failed to provide the requisite notice and had not adequately justified the termination. Consequently, the application was dismissed. The Commission emphasised the importance of adhering to the procedural steps outlined in the Act to ensure that the rights of the parties are properly protected and that any changes to a certified agreement are made in a fair and transparent manner.

Programmed Skilled Workforce Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established