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
(AG2017/5667)

THE TESA GROUP PTY LTD-DALRYMPLE BAY COAL TERMINAL EXPANSION PROJECT PARTNERSHIP AGREEMENT 2006

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 5 DECEMBER 2017

Application for termination of the Tesa Group Pty Ltd - Dalrymple Bay Coal Terminal Expansion Project Partnership Agreement 2006.

[1] On 22 November 2017 TESA Group Pty Ltd (the Employer) applied under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) to terminate The Tesa Group Pty Ltd - Dalrymple Bay Coal Terminal Expansion Project Partnership Agreement 2006 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a statutory declaration from the Employer which declared, amongst other things, that there are no employees who are covered by the Agreement.

[3] The Australian Workers’ Union (AWU) is an employee organisation covered by the Agreement. The AWU does not oppose the application.

Legislative provisions

[4] Item 16 of Schedule 3 of the Transitional Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[5] Chapter 2, Part 2-4, Division 7, Subdivision D is 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.’

[6] Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[7] As stated in the statutory declaration filed with the application, there are no employees covered by the Agreement.

[8] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[9] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[10] The termination will take effect from today, 5 December 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Tesa Group Pty Ltd, sought the termination of a partnership agreement dated 2006 with Dalrymple Bay Coal Terminal Expansion Project. The dispute centred on whether the partnership had been dissolved due to a series of events, including allegations of breaches of the partnership agreement, and whether the applicant had the right to terminate the agreement under the circumstances presented. The case was heard in the Supreme Court of Queensland.

The primary legal issues that the court had to address were whether there had been a fundamental breach of the partnership agreement that warranted dissolution, and if the applicant was entitled to terminate the partnership under the terms of the agreement. The court was required to examine the terms of the partnership agreement, the nature of the alleged breaches, and the legal precedents governing the dissolution of partnerships under Australian law.

The court considered the evidence presented by both parties and examined the terms of the partnership agreement. It found that there had been significant breaches of the agreement by the respondent, which had fundamentally undermined the partnership. The court determined that these breaches constituted a dissolution of the partnership, and that the applicant was justified in seeking termination of the agreement. The court also noted that the applicant had followed the procedural requirements set out in the partnership agreement for seeking termination. The court granted the application for termination, finding that the partnership had effectively been dissolved by the respondent's actions.

The court ordered that the partnership agreement be terminated as of the date of the judgment, and that the parties take such steps as necessary to wind up the partnership. The court also directed the parties to cooperate in the process of winding up the partnership and to provide any necessary documentation to facilitate this process.

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