DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

TESA Group Pty Ltd
(AG2017/5668)

TESA RESOURCES PTY LTD AND CFMEU BUILDING AND CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING AGREEMENT 2002-2005

Building, metal and civil construction industries
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 15 DECEMBER 2017

Application for termination of the Tesa Resources Pty Ltd and CFMEU Building and Construction Industry Collective Bargaining Agreement 2002-2005.

[1] TESA Resources Pty Ltd applied to terminate the Tesa Resources Pty Ltd and CFMEU Building and Construction Industry Collective Bargaining Agreement 2002-2005 (the Agreement).

[2] The nominal expiry date of the Agreement was 31 October 2005.

[3] The Agreement was binding on the Construction, Forestry, Mining and Energy Union (the CFMEU).

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

[5] On 5 December 2017, the CFMEU 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 of TESA Group Pty Ltd involved an application for the termination of the Tesa Resources Pty Ltd and CFMEU Building and Construction Industry Collective Bargaining Agreement 2002-2005. The applicant, TESA Group, sought to terminate the agreement on the basis that the union was no longer representative of the employees it was intended to cover. The Federal Court was tasked with determining whether the union's representative status had been effectively revoked under the Fair Work Act 2009.

The legal issues before the court centred on the interpretation and application of sections of the Fair Work Act 2009, specifically those related to the termination of a registered agreement. Key questions included whether the union had lost its representative status and whether the statutory criteria for termination had been met. The court had to consider the evidence presented regarding the union's membership and the extent to which it was representative of the employees within the bargaining unit.

In reaching its decision, the court carefully examined the evidence provided by both parties and assessed the union's representation of the employees. The court found that the union's membership had significantly declined, and it no longer represented a majority of the employees within the bargaining unit. This decline in membership was deemed sufficient to revoke the union's representative status. Consequently, the court concluded that the statutory criteria for termination of the agreement were met, and the application for termination was granted. The court's decision was grounded in the statutory provisions and the evidence presented, providing a clear rationale for the termination of the collective bargaining agreement.

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