DECISION

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

TESA Group Pty Ltd
(AG2017/5655)

TESA RESOURCES ALTONA AREA COLLECTIVE BARGAINING AGREEMENT 2000

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

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

[1] TESA Resources Pty Ltd applied to terminate the Tesa Resources Altona 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

In the Fair Work Commission, TESA Group Pty Ltd applied for the termination of the Tesa Resources Altona Area Collective Bargaining Agreement 2000. The applicant sought the termination of the Agreement on the basis that it had not been formally extended and had therefore expired on 31 March 2016. The dispute hinged on whether the Agreement could be considered to have been extended through continued operation, and whether the applicant had demonstrated a genuine attempt to negotiate a new agreement. The Commission was tasked with determining whether the Agreement had indeed expired and, if so, whether termination was appropriate.

The central legal issue before the Commission was whether the collective agreement had effectively expired, and if so, whether the applicant had acted reasonably in its attempts to reach a new agreement with the respondent. The applicant argued that the Agreement had expired and that it had made genuine attempts to negotiate a new agreement, while the respondent contended that the Agreement was still in effect and that the applicant had not acted in good faith. The Commission had to consider the evidence presented by both parties, including communications between the parties and the broader context of the industrial relations environment.

In its decision, the Commission found that the Agreement had indeed expired and that the applicant had not acted reasonably in its attempts to reach a new agreement. The Commission noted that while the applicant had made some efforts to negotiate, these were not sufficient to demonstrate a genuine attempt to reach a new agreement. The Commission concluded that the applicant's conduct amounted to an unfair labour practice, justifying the termination of the Agreement. The Commission ordered that the Tesa Resources Altona Area Collective Bargaining Agreement 2000 be terminated as of the date of the decision.

TESA Group Pty Ltd

DECISION

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