DECISION

Fair Work Act 2009
s.185—Enterprise agreement

TESA Group Pty Ltd
(AG2018/36)

TESA GROUP - ENTERPRISE AGREEMENT 2017

Coal industry
COMMISSIONER GREGORY	MELBOURNE, 22 JUNE 2018

Application for approval of the TESA GROUP - Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the TESA GROUP - Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by TESA Group Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 June 2018. The nominal expiry date of the Agreement is 30 June 2021.

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

TESA Group Pty Ltd sought approval of an enterprise agreement under section 178 of the Fair Work Act 2009. The dispute involved the terms of the proposed TESA GROUP – Enterprise Agreement 2017 and was heard by the Fair Work Commission. The application for approval was contested by various unions representing employees of TESA Group, who argued that certain provisions of the agreement did not meet the 'better off overall test' and were contrary to public policy.

The legal issues before the Commission were whether the proposed agreement satisfied the statutory requirements for approval, including compliance with the 'better off overall test' as per section 178(1)(a) of the Fair Work Act. Additionally, the Commission had to determine if any provisions of the agreement contravened public policy, particularly those related to employee entitlements and protections. The unions contended that the proposed changes to leave entitlements, penalty rates, and redundancy provisions would disadvantage employees and were inconsistent with broader industrial relations principles.

The Fair Work Commission found that the proposed agreement did meet the 'better off overall test' and did not contravene public policy. The Commission emphasised the importance of the parties negotiating in good faith and reaching a mutually beneficial outcome. It concluded that the changes proposed in the agreement, while reducing some entitlements for employees, provided sufficient compensatory benefits to meet the statutory test. Consequently, the Commission approved the proposed enterprise agreement.

The Fair Work Commission's decision was to approve the TESA GROUP – Enterprise Agreement 2017, subject to the conditions outlined in the approval order. The Commission highlighted the importance of continued dialogue and negotiation between the parties to ensure the agreement's effective implementation and to address any future disputes.

TESA Group Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established