Agreement to terminate individual agreement-based transitional instruments
[2011] FWA 3334
•27 MAY 2011
[2011] FWA 3334 |
|
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 17 Sch. 3—Termination of transitional instrument
Roverworth Pty Ltd
(AG2011/8136 - AG2011/8215)
Meat Industry | |
VICE PRESIDENT LAWLER | MELBOURNE, 27 MAY 2011 |
Agreement to terminate individual agreement-based transitional instruments.
[1] This is an application by Roverworth Pty Ltd for the termination of a number of AWAs and ITEAs being AG2011/8136 to AG2011/8215 (current applications). They were lodged on 20 April 2011.
[2] On 30 December 2010 Roverworth lodged an application for the approval of an enterprise agreement being AG2010/30008 (agreement approval application). The agreement approval application was dealt with by Senior Deputy President Drake who approved the agreement.
[3] The agreement approval application was accompanied by a number of agreements to terminate Australian Workplace Agreements (AWAs) and Individual Transitional Employment Agreements (ITEAs). Of the employees covered by the current applications, all but nine (9) were party to a termination agreement that accompanied the agreement approval application. For each of those nine employees there is a termination agreement that accompanied the present application.
[4] It seems that the current applications have been made on the basis of an assumption that the individual termination agreements that accompanied the agreement approval application have not taken effect because Drake SDP’s agreement approval decision made no mention of them.
[5] Any such assumption is incorrect. Item 18 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) creates a regime whereby employees on AWAs or ITEAs can enter “conditional termination agreements”, the operation of which is conditional upon an enterprise agreement covering the employee being subsequently approved by FWA. When such a conditional termination agreement is made and accompanies a subsequent application for the approval of an enterprise agreement that covers the employee, it takes effect upon approval of the enterprise agreement and the associated AWA or ITEA terminates by operation of item 18(8) of Schedule 3 irrespective of whether or not this is mentioned in the agreement approval decision.
[6] I am satisfied that the conditional termination agreements that accompanied the agreement approval application met the requirements for such agreements in item 18 of Schedule 3. Accordingly, the associated AWAs and ITEAs terminated by operation of item 18(8) upon the approval of the company’s enterprise agreement by Drake SDP.
[7] It follows that the current applications are unnecessary other than in relation to the nine employees referred to above. In so far as the current applications relate to those nine employees, I am satisfied that the requirements of item 17 of Schedule 3 to the Transitional Act have been met. An order pursuant to item 17 of Schedule 3 to the Transitional Act will issue in conjunction with this decision to approve the termination of the individual agreement-based transitional instruments to which those nine employees were party.
VICE PRESIDENT
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