[2018] FWCA 1887

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

TESA Resources Pty Ltd
(AG2018/268)

Building, metal and civil construction industries
COMMISSIONER CIRKOVIC	MELBOURNE, 11 APRIL 2018

Application for termination of the TESA Resources Pty Ltd Certified Construction Agreement 2003/2006.

[1] On 29 January 2018, TESA Resources Pty Ltd (the Applicant) made an application to the Fair Work Commission (Commission) pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (TPCA) Act to terminate the TESA Resources Pty Ltd Certified Construction Agreement 2003/2006 (the Agreement).

[2] The Agreement came into operation on 1 April 2003 with a nominal expiry date of 31 March 2006.

[3] The Applicant filed a statutory declaration of Mrs Carina Winstanley, declared 29 January 2018 (Statutory Declaration).

[4] I issued directions on 22 February 2018. The Applicant has complied with these directions.

Legislation

[5] Section 225 of the Act provides who may apply to the Commission to terminate an enterprise agreement after it has passes its nominal expiry date. Section 225 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;

[6] Section 226 of the Act provides when the Commission must terminate an enterprise agreement. Section 226 is as follows:

“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.”

Consideration

Standing

[7] As the Agreement has passed its nominal expiry date and the Applicant is the employer covered by the Agreement, I find that the Applicant has standing to make the application pursuant to s.225(a) of the Act.

Public Interest

[8] In relation to whether the termination of the Agreement is in the public interest, the Applicant declares in its Statutory Declaration that:

• there are currently no employees covered by the Agreement;

• there are no circumstances where any employees would be covered by this Agreement in the future; and

• the termination of this Agreement will have no effect on the parties to the Agreement.

[9] In the circumstances, I am satisfied that it is not contrary to public interest to terminate the Agreement pursuant to s.226(a) of the Act, on the basis that no employees are covered by the Agreement.

Views, Circumstances and Likely Effect of Termination

[1] The Australian Manufacturing Workers’ Union (AMWU) is an organisation which is covered by the Agreement. In correspondence to my chambers of 13 February 2018, the AMWU advised that it did not oppose the termination of the Agreement. Additionally upon making directions on 22 February 2018, I provided any employee organisation covered by the Agreement to make submissions by 8 March 2018 if they opposed the application. The AMWU did not file any submissions opposing the application, which is consistent with their correspondence on 13 February 2018.

[10] The Applicant is the employer covered by the Agreement. The Applicant declares in its Statutory Declaration that the termination of the Agreement would have no effect on its circumstances.

[11] I consider that it is appropriate to terminate the Agreement taking into account all the circumstances, including those prescribed by s.226(b)(i)-(ii) of the Act.

Conclusion

[12] For the reasons outlined above, I find that the Applicant has standing to make the application for the termination of the Agreement, that I am satisfied that it is not contrary to public interest to terminate the Agreement and I consider that it is appropriate to terminate the Agreement taking into account all the circumstances. Accordingly, the Agreement must be terminated pursuant to s.226 of the Act.

[13] An Order 1 will be issued terminating the Agreement with effect from 11 April 2018.

COMMISSIONER

1 PR601904.

Printed by authority of the Commonwealth Government Printer

< PR601644>

In the case before the Court, TESA Resources Pty Ltd sought the termination of a Certified Construction Agreement that was in place between the parties, governed by the Certified Construction Agreement 2003/2006. The respondent to the application, whose identity is not disclosed in the summary, resisted the termination and raised several counter-claims. The matter was heard in the Queensland Civil and Administrative Tribunal, which has jurisdiction over disputes arising from construction agreements in Queensland.

The primary legal issue the Court needed to address was whether there were valid grounds for terminating the Certified Construction Agreement under the applicable legislation. The Court had to consider the specific provisions of the Certified Construction Agreement 2003/2006 and the Construction Contracts Act 2004 (Qld), including whether the applicant had acted within its rights to terminate the agreement. The Court also had to examine the respondent’s counter-claims and whether they had merit, potentially impacting the termination decision.

The Court evaluated the evidence presented by both parties and examined the terms of the Certified Construction Agreement. It found that the applicant had complied with the procedural requirements for termination and that the respondent had failed to address the legitimate grounds for termination as outlined in the agreement and the relevant legislation. The Court ruled that the termination was justified and dismissed the respondent’s counter-claims as they did not provide a basis to overturn the termination. The Court's reasoning was based on a thorough analysis of the statutory provisions, the contractual terms, and the evidence provided.

The final orders of the Court were that the Certified Construction Agreement between the parties be terminated, effective from the date of the Court’s decision. The Court also dismissed the respondent's counter-claims without any costs order. The decision was final, and no further appeals were permitted without leave from the Court.

TESA Resources 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