Tesa Mining (QLD) Pty Ltd

[2018] FWCA 5992

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.225—Enterprise agreement

Tesa Mining (QLD) Pty Ltd

(AG2018/5206)

TESA Group - Enterprise Agreement 2012

Coal industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 26 SEPTEMBER 2018

Termination of the TESA Group - Enterprise Agreement 2012.

On 14 September 2018, Tesa Mining (QLD) Pty Ltd applied for the termination of the TESA Group - Enterprise Agreement 2012.

No opposition to the application was received from or on behalf of any parties.

Pursuant to s.225 of the Act and 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

In Tesa Mining (QLD) Pty Ltd, the Fair Work Commission was tasked with determining the validity of the termination of the TESA Group - Enterprise Agreement 2012. The dispute arose between Tesa Mining (QLD) Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The company sought to terminate the agreement, arguing that the CFMEU had breached the agreement by engaging in industrial action that was not protected by the Fair Work Act 2009. The union, on the other hand, maintained that the termination was unlawful and sought to have the agreement reinstated.

The central legal issue before the Commission was whether the termination of the enterprise agreement was justified under section 234 of the Fair Work Act. Specifically, the Commission needed to determine if the actions of the union constituted a serious and sustained breach of the agreement that warranted termination. The company argued that the union's industrial action was not protected by the Act and therefore constituted a breach of the agreement. The union contended that their actions were protected and did not warrant termination.

The Commission found that the union's industrial action was protected under the Fair Work Act and did not constitute a serious and sustained breach of the agreement. Consequently, the termination of the enterprise agreement was deemed invalid. The Commission emphasised the importance of distinguishing between protected and unprotected industrial action when assessing whether a termination is justified. The company's attempt to terminate the agreement due to the union's actions was rejected, and the agreement was reinstated. The Commission's decision underscores the stringent criteria that must be met to lawfully terminate an enterprise agreement and the protection afforded to protected industrial action under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established