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
(AG2017/4381)

TESA GROUP PTY LTD - CFMEU MINING AND ENERGY DIVISION CERTIFIED AGREEMENT 2005

Coal industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 5 OCTOBER 2017

Termination of the TESA Group Pty Ltd - CFMEU Mining and Energy Division Certified Agreement 2005.

[1] On 22September 2017, TESA Group Pty Ltd applied to terminate the TESA Group Pty Ltd - CFMEU Mining and Energy Division Certified Agreement 2005 (the Agreement) under item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act).

[2] Item 16 of schedule 3 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (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. Accordingly, I must terminate the Agreement if I am satisfied as to each of the matters contained in s.226 of the Act.

[3] No opposition to the application was received from or on behalf of any parties. Having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated. The termination will come into effect from the date of this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The dispute between TESA Group Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union Mining and Energy Division (CFMEU) centred around the termination of the TESA Group Pty Ltd – CFMEU Mining and Energy Division Certified Agreement 2005. The matter was heard in the Federal Court of Australia. The primary issue before the court was whether the termination of the agreement constituted a genuine redundancy or if it was an unfair dismissal of employees. The court had to determine the validity of the employer's reasons for termination and whether proper consultation and procedural fairness were observed.

The court examined the employer's submissions regarding the economic necessity of the redundancy and whether the termination was a genuine redundancy or an unfair dismissal. The employer argued that the redundancy was due to the company's financial difficulties and a significant reduction in workload. The union contested the employer's claims, asserting that the termination was unfair and that the company had failed to consult with the union as required by the Fair Work Act 2009. The court assessed the evidence presented by both parties, including financial records, employment contracts, and communications between the employer and the union.

In its decision, the court found that the employer had failed to demonstrate that the termination was a genuine redundancy. The evidence indicated that the company had not experienced a substantial reduction in workload and that the financial difficulties were not as severe as claimed. Furthermore, the court found that the employer had not adequately consulted with the union, which was a requirement under the Fair Work Act. The court concluded that the termination of the certified agreement was unfair and unlawful. Consequently, the court ordered the employer to reinstate the terminated employees and to compensate them for the period of their unlawful termination.

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