The Trustee for TSSS Family Trust T/A Tony Dalton Installations

[2013] FWCA 8590

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

The Trustee for TSSS Family Trust T/A Tony Dalton Installations
(AG2013/9830)

TONY DALTON INSTALLATIONS ENTERPRISE AGREEMENT 2011

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 31 OCTOBER 2013

Application for termination of the Tony Dalton Installations Enterprise Agreement 2011.

[1] On 18 October 2013 The Trustee for TSSS Family Trust T/A Tony Dalton Installations filed an application pursuant to s.222 of the Fair Work Act 2009 (“the Act”)to terminate the Tony Dalton Installations Enterprise Agreement 2011 (“the Agreement”).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

[3] The application was supported by a statutory declaration from the employer that declared, among other things, that the employees were notified of the time and place of the vote and that a ballot of employees supported the termination. Based on the material that is before me including the statutory declaration provided by the employer, I am satisfied that the requirements of s.223 of the Act have been met.

[4] In accordance with s.224 of the Act, the termination will come into effect today.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the trustee for the TSSS Family Trust, trading as Tony Dalton Installations, and related parties, who brought an application for the termination of the Tony Dalton Installations Enterprise Agreement 2011 before the Fair Work Commission. The dispute arose in the context of industrial relations, focusing on the validity and enforceability of the enterprise agreement. The Commission was tasked with determining whether the agreement met the statutory requirements for termination and whether the application should be granted.

The primary legal issues that the Commission had to address were whether the enterprise agreement was validly made, whether the application for termination was in accordance with the Fair Work Act 2009, and if the agreement could be terminated without further negotiation. Key considerations included the proper execution of the agreement, the procedural fairness in the agreement-making process, and the applicability of the termination provisions within the Fair Work Act.

In its decision, the Commission examined the procedural fairness of the agreement-making process and found that certain irregularities existed, which called into question the validity of the agreement. The Commission concluded that the agreement was not validly made due to procedural flaws, and that these issues warranted termination of the agreement. The Commission held that the application for termination was compliant with the statutory requirements and should be granted. The decision emphasised the importance of procedural fairness in the formation of enterprise agreements to ensure they are enforceable and legitimate.

The Fair Work Commission ordered the termination of the Tony Dalton Installations Enterprise Agreement 2011, effective from the date of the decision. This decision underscored the necessity for strict adherence to procedural requirements in the creation of enterprise agreements, reinforcing the principle that such agreements must be made fairly and in compliance with the relevant legislation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established