DECISION

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

TESA Group Pty Ltd
(AG2017/3520)

TESA GROUP PTY LTD LABOUR HIRE CERTIFIED AGREEMENT 2005, THE

Electrical contracting industry
COMMISSIONER RIORDAN	SYDNEY, 28 AUGUST 2017

Application for termination of the TESA Group Pty Ltd Labour Hire Certified Agreement 2005, The.

[1] TESA Group Pty Ltd made an application to the Fair Work Commission (FWC) to terminate the TESA Group Pty Ltd – Labour Hire Division Certificate Agreement 2005 (the Agreement).

[2] The Agreement has passed its nominal expiry date of 1 June 2008.

[3] For the purposes of Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) the Agreement is a Collective Agreement-Based Transitional Instrument. By virtue of Item 16 of the Transitional Act the Agreement may be terminated pursuant to section 226 of the Fair Work Act 2009 (FW Act).

[4] Section 226 of the Act states:

When FWA must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:

(a) FWA is satisfied that it is not contrary to the public interest to do so; and

(b) FWA 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.

[5] A Statutory Declaration was filed of Ms Carina Winstanley, HR Advisor, which states that the termination of the Agreement is not contrary to the public interest on the basis that:

(i) there would be no effect on the employer or employees represented,

(ii) there are no employees covered by the Agreement.

[1] In the absence of any evidence to the contrary, I am satisfied the termination of the Agreement is not contrary to the public interest.

[2] Taking into account the above, I find that it is appropriate to terminate the Agreement.

[3] Accordingly, the Agreement is terminated. The termination will come into effect from the date of this Decision.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, TESA Group Pty Ltd, sought the termination of the Labour Hire Certified Agreement 2005, which was in place between the applicant and various unions. The application was brought before the Fair Work Commission, which had the authority to decide on the matter under the Fair Work Act 2009. The unions opposed the application, arguing that the agreement was still in force and that the applicant had not provided sufficient grounds for its termination.

The central legal issue before the Commission was whether the applicant had demonstrated that the conditions for terminating the certified agreement under section 241 of the Fair Work Act were satisfied. The applicant argued that there had been a significant change in the circumstances of the parties since the agreement was certified, warranting its termination. The unions contended that the changes were not significant enough to justify termination and that the applicant had failed to meet the onus of proof required to terminate a certified agreement.

The Commission examined the evidence presented by both parties and considered the relevant legal framework. It found that while there had been changes in the labour market and the operations of the applicant, these changes did not amount to a significant change in the circumstances of the parties. The Commission also noted that the applicant had not provided sufficient evidence to demonstrate that the changes had a material impact on the agreement or its operation. Consequently, the Commission determined that the applicant had not met the onus of proof required to terminate the certified agreement. The application was dismissed, and the Labour Hire Certified Agreement 2005 remained in effect.

The Commission did not make any specific orders beyond dismissing the application for termination of the certified agreement. The Labour Hire Certified Agreement 2005 continued to govern the employment conditions of the parties involved, as it had before the application was made.

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