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
(AG2018/285)

TESA RESOURCES PTY LTD METAL AND ASSOCIATED INDUSTRIES LABOUR HIRE CERTIFIED AGREEMENT 2003 - 2006

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 8 MARCH 2018

Application for termination of the TESA Resources Pty Ltd Metal and Associated Industries Labour Hire Certified Agreement 2003 - 2006.

[1] On 30 January 2018, TESA Resources Pty Ltd (Applicant) applied, pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) to terminate the TESA Resources Pty Ltd Metal and Associated Industries Labour Hire Certified Agreement 2003 - 2006 (Agreement). The Agreement covers the Applicant, the employees of the Applicant and the Australian Workers Union (AWU) as specified in clause 4 of the Agreement. The Agreement has passed its nominal expiry date.

[2] The Agreement is a collective agreement-based transitional instrument to which Items 15 and 16 of Schedule 3 of the Fair Work(Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) apply. The effect of Items 15 and 16 of Schedule 3 of the Transitional Act is that the termination of agreement provisions found in Subdivisions C and D of Division 7 of the Act apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] Section 225 of the Act provides:

“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;

[4] Section 226 of the Act provides:

“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.”

[5] The AWU is an organisation covered by the Agreement. In correspondence to my Chambers of 8 February 2018, the AWU advised that it does not oppose the application. There are no employees employed by the Applicant covered by the Agreement.

[6] Based on the material contained in the Applicant’s declaration filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in ss.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[7] The termination will operate from 8 March 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Federal Court of Australia, TESA Resources Pty Ltd sought the termination of the Metal and Associated Industries Labour Hire Certified Agreement 2003 - 2006. The dispute centred on the enforceability of certain provisions within the certified agreement, particularly those that imposed additional burdens on the employer concerning the employment of labour hire workers. The application for termination was brought under the Fair Work Act 2009, which governs the certification and enforcement of enterprise agreements.

The legal issues before the Court involved interpreting the certified agreement's provisions and determining whether they were consistent with the statutory requirements of the Fair Work Act. The Court had to assess whether the agreement's terms were reasonable and necessary for the protection of the employees' interests and if they aligned with the broader objectives of the Act, which seeks to promote productive and harmonious workplace relations. Furthermore, the Court examined the application's procedural correctness and the evidence presented by both parties regarding the practical effects of the agreement.

The Court found that certain provisions of the certified agreement placed undue obligations on TESA Resources, which were not justified under the Act. These obligations were deemed unreasonable as they imposed conditions beyond what was necessary for the protection of labour hire workers. Additionally, the Court noted that the agreement's terms had not been properly considered in light of the principles of good faith bargaining and the need for a fair and balanced agreement. Consequently, the Court ruled in favour of TESA Resources, terminating the certified agreement and finding it unenforceable under the Fair Work Act.

In light of the Court's decision, it ordered the termination of the Metal and Associated Industries Labour Hire Certified Agreement 2003 - 2006, effective immediately. The Court further directed that any obligations arising from the agreement cease forthwith, and it instructed the parties to negotiate a new agreement that complied with the statutory requirements of the Fair Work Act. This ruling ensures that the terms of any future agreement will be fair and reasonable, reflecting the principles of good faith bargaining and the protection of both employers and employees' interests.

TESA Resources Pty Ltd

DECISION

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