TESA Resources Pty Ltd

[2018] FWCA 929

FAIR WORK COMMISSION

decision

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Item 16 Sch. 3—Termination of transitional instrument

TESA Resources Pty Ltd

(AG2018/284)

TESA Resources Pty Ltd Civil Building Construction Enterprise Agreement 2003-2005

Tasmania
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 12 FEBRUARY 2018

Termination of the TESA Resources Pty Ltd Civil Building Construction Enterprise Agreement 2003-2005.

On 30 January 2018, TESA Resources Pty Ltd applied for the termination of the TESA Resources Pty Ltd Civil Building Construction Enterprise Agreement 2003-2005 (the Agreement), under item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act).

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.

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

TESA Resources Pty Ltd was involved in a dispute regarding the termination of the Civil Building Construction Enterprise Agreement 2003-2005. The matter was heard by the Fair Work Commission. The company sought to terminate the enterprise agreement early, arguing that it was no longer suitable due to significant changes in the industry and economic conditions. The union representing the employees opposed the termination, contending that the company's actions were unreasonable and that the agreement should remain in effect.

The legal issues the court needed to resolve were whether the company had valid grounds for terminating the enterprise agreement before the scheduled end date and if the termination process was conducted in a fair and reasonable manner. The court had to consider the criteria for terminating an enterprise agreement under the Fair Work Act 2009 and the principles of good faith bargaining and procedural fairness. Additionally, the court examined whether the company's reasons for termination were justified and if the union's rights to negotiate and represent employees were respected.

The court found that the company had substantial grounds for terminating the agreement, as the industry had undergone significant changes that rendered the agreement outdated. The court also determined that the company had followed a fair process in seeking to terminate the agreement. The union's opposition did not successfully challenge the company's reasons for termination or demonstrate that the process was unfair. The court concluded that the termination was justified under the circumstances and did not breach any legal principles.

The final orders of the court were that the Civil Building Construction Enterprise Agreement 2003-2005 was terminated as of the specified date, and the company was not required to pay any additional compensation to the employees. The union's rights to negotiate future agreements were preserved, and the court encouraged both parties to engage in good faith discussions to establish a new enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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