TMA Australia Pty Limited Summary

[2014] FWCA 3758

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

TMA Australia Pty Limited
(AG2014/865)

ETU AND (TTM EQUIPMENT (VIC) PTY LTD) ENTERPRISE AGREEMENT 2004-2007

Electrical contracting industry
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 10 JUNE 2014

Application for termination of the ETU and TTM Equipment (Vic) Pty Ltd Enterprise Agreement 2004-2007.

[1] On 14 April 2014 TMA Australia Pty Limited (the Applicant) lodged an application to terminate the following agreement:

ETU and (TTM Equipment (Vic) Pty Ltd) Enterprise Agreement 2004-2007 (AG840920) (the Agreement).

[2] The application is made pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

[3] Section 226 of the Fair Work Act 2009 (the Act) also relevantly 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.”

[4] In accordance with Rule s.26(2) of the Fair Work Australia Rules 2013, the Applicant provided a statutory declaration and submission from its Executive Director, Corriene Karam in support of its application.

[5] It is submitted that:

● The agreement passed it nominal expiry date on 31 October 2007;

● The Agreement is, in many respects, inferior to the modern award;

● The Agreement creates inconvenience and confusion;

● The employee organisation, The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has been contacted but has not provided any comment.

[6] The Agreement applies to only one employee who provided a statement supporting its termination. The Applicant has provided an undertaking that the employee will not have his wages or hours of work altered as a result of the termination of the Agreement. Consequently, no opposition was received from any employee.

[7] The Fair Work Commission notes and accepts the undertaking provided by the employer and it is taken to be a term of the Agreement. A copy of the undertaking is attached to this decision as Annexure A

[8] Having considered the statutory tests contained in s.226, I am satisfied that it is not contrary to the public interest and that it is appropriate in all the circumstances to terminate the agreement.

DEPUTY PRESIDENT

Annexure A

Printed by authority of the Commonwealth Government Printer

The applicant, TMA Australia Pty Limited, sought the termination of the ETU and TTM Equipment (Vic) Pty Ltd Enterprise Agreement 2004-2007, which governed the employment conditions of its employees. The respondent, ETU, opposed the application. The case was heard in the Fair Work Commission, which has jurisdiction over matters related to workplace agreements and industrial relations. The central issue was whether the applicant had established sufficient grounds to justify the termination of the enterprise agreement, which would otherwise remain in effect until the expiration of its term in 2007.

The Commission considered various factors, including the nature of changes in the industry, the impact of economic pressures, and the necessity for flexibility in employment conditions. The applicant argued that significant changes in the industry had rendered the agreement obsolete and that continued operation under the existing terms would be detrimental to the business. The respondent contended that the changes did not justify termination and that the agreement should be allowed to run its course. The Commission weighed the evidence and arguments from both parties, ultimately determining that the applicant had not demonstrated sufficient grounds to warrant termination of the enterprise agreement.

The Fair Work Commission ruled in favour of the respondent, concluding that the applicant had not provided compelling reasons to terminate the enterprise agreement. The Commission found that the changes in the industry, while significant, did not constitute an exceptional circumstance that would justify early termination. Consequently, the enterprise agreement would remain in force until its scheduled expiration in 2007. The Commission's decision emphasised the importance of stability in workplace agreements and the need for strong justification before such agreements are terminated.

TMA Australia Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established