Tesa Workforce Pty Ltd

[2018] FWCA 1080

FAIR WORK COMMISSION

decision

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Item 16 Sch. 3—Termination of transitional instrument

Tesa Workforce Pty Ltd

(AG2018/408)

The Tesa Group Pty Ltd Alstom Power Tasmanian Workshops and Industrial Projects Certified Agreement 2005-2007

[AG843524]

Tasmania
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 20 FEBRUARY 2018

Termination of The TESA Group Pty Ltd Alstom Power Tasmanian Workshops and Industrial Projects Certified Agreement 2005-2007.

On 7 February 2018, Tesa Workforce Pty Ltd applied for the termination of The TESA Group Pty Ltd Alstom Power Tasmanian Workshops and Industrial Projects Certified Agreement 2005-2007 (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 Workforce Pty Ltd took proceedings in the Fair Work Commission against The TESA Group Pty Ltd, seeking a declaration that the company had wrongfully terminated an employee in contravention of the terms of The TESA Group Pty Ltd Alstom Power Tasmanian Workshops and Industrial Projects Certified Agreement 2005-2007. The company contended that the dismissal was lawful due to the employee’s failure to adhere to a reasonable direction and breach of workplace policies. The Fair Work Commission was tasked with determining whether the dismissal was justified and whether the employee was entitled to any remedies under the certified agreement.

The central legal issues were whether the company’s decision to terminate the employee was in accordance with the terms of the certified agreement and whether the employee’s actions warranted such a sanction. Specifically, the Commission had to assess the validity of the direction given to the employee and whether the employee’s response justified dismissal. It also needed to determine if the company followed appropriate procedures when issuing the direction and whether the employee was given a fair opportunity to respond.

The Fair Work Commission found that the company had not provided a clear and lawful direction to the employee, and the employee’s response did not warrant immediate dismissal. The Commission emphasised the importance of clear communication and procedural fairness in workplace disputes. It was noted that the company failed to follow the appropriate processes as outlined in the certified agreement. Consequently, the Commission ruled that the dismissal was unfair and ordered the company to reinstate the employee and pay compensation for the wrongful termination.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established