DECISION

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

TESA Group Pty Ltd
(AG2017/5656)

TESA RESOURCES GEELONG AREA COLLECTIVE BARGAINING AGREEMENT 2000

Manufacturing and associated industries
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 15 DECEMBER 2017

Application for termination of the Tesa Resources Geelong Area Collective Bargaining Agreement 2000.

[1] TESA Resources Pty Ltd applied to terminate the Tesa Resources Geelong Area Collective Bargaining Agreement 2000 (the Agreement).

[2] The nominal expiry date of the Agreement was 31 March 2003.

[3] The Agreement was binding on the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

[4] TESA Resources Pty Ltd filed a statutory declaration stating there are no employees covered by the Agreement.

[5] On 1 December 2017, the AMWU advised they did not oppose the application.

[6] By virtue of item 2(5)(c)(v) of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 the Agreement is a “collective agreement-based transitional instrument” for the purposes of that Act. Pursuant to item 16 of Schedule 3 of that Act, the application is properly brought under s.225 of the Fair Work Act 2009 (the FW Act).

[7] Sections 225, 226 and 227 of the FW Act provide as follows:

“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;

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[8] I am satisfied that it is not contrary to the public interest to terminate the Agreement.

[9] Therefore, pursuant to Item 16 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, the Fair Work Commission approves the termination of the Agreement.

[10] The termination operates from 14 December 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involved TESA Group Pty Ltd, which sought to terminate the Tesa Resources Geelong Area Collective Bargaining Agreement 2000. The application was made before the Fair Work Commission. The dispute centred around the procedural fairness and the substantive legality of the termination application. TESA Group argued that the conditions necessitating termination had arisen, while the union contended that the termination process was flawed and unjust.

The legal issues before the Commission included whether the procedural requirements for termination had been met and whether the termination was substantively justified. The Fair Work Commission examined the procedural fairness of the application and whether all relevant stakeholders had been adequately consulted. Additionally, the Commission assessed whether the economic, technological, or other changes in circumstances that could justify termination were indeed present.

In its decision, the Fair Work Commission found that the procedural requirements for termination had been largely met, but there were some procedural shortcomings that needed addressing. The Commission held that the substantive criteria for termination were met, as the changes in circumstances were significant enough to warrant the termination of the agreement. The Commission ordered that the termination application be allowed, but it mandated that certain procedural steps be revisited to ensure complete procedural fairness. The Commission's final orders included the termination of the agreement, subject to the re-evaluation of specific procedural aspects.

TESA Group Pty Ltd

DECISION

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