DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 17 - Application by agreement to terminate individual agreement-based transitional instrument

ConnectEast Pty Ltd t/a EastLink
and
Mr Daniel Petrovski
(AG2021/26)

DEPUTY PRESIDENT MANSINI

MELBOURNE, 22 JANUARY 2021

Agreement to terminate individual agreement-based transitional agreement.

[1] On 7 January 2021, ConnectEast Pty Ltd t/a EastLink (the Employer) applied to the Commission for approval of a termination of an individual agreement-based transitional instrument pursuant to Item 17 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Act).

[2] Item 17 of Schedule 3 of the Act provides as follows:

“17 Individual agreement-based transitional instruments: termination by agreement

(1) The employee and employer covered by an individual agreement-based transitional instrument may make a written agreement (a termination agreement) to terminate the agreement in accordance with the following requirements:

(a) the termination agreement must be signed by the employee and the employer;

(b) if the employee is under 18, it must also be signed by a parent or guardian of the employee;

(c) the signatures must be witnessed.

(2) The termination has no effect unless it has been approved by the FWC.

(3) The employer or employee may apply to the FWC for approval of the termination agreement. The application must be made:

(a) within 14 days after the termination agreement was made; or

(b) if in all the circumstances the FWC considers it fair to extend that period--within such further period as the FWC allows.

(4) If an application for the FWC to approve the termination agreement is made under subitem (3), the FWC must approve the termination of the instrument if:

(a) the FWC is satisfied that the requirements of subitem (1) have been complied with; and

(b) the FWC is satisfied that there are no other reasonable grounds for believing that the employee has not agreed to the termination.

(5) If the termination is approved under subitem (4), the termination operates from the day specified in the decision to approve the termination.”

[3] Accompanying the application was a copy of the termination agreement between the Employer and Mr Daniel Petrovski (known as Louie Petrovski) (the Employee) which was made on 29 December 2020. The signatures of the Employee and Mr Keen (HR Risk & Safety Manager on behalf of the Employer) were witnessed.

[4] As the application was lodged on 7 January 2021, I am satisfied that it has been made within the time prescribed.

[5] On the basis of the material before me, and having regard to the views of the Employee and the Employer expressed during a conference before the Commission on 22 January 2021, I am satisfied that the requirements of subitem (1) of Item 17 of Schedule 3 of the Act have been complied with and there are no other reasonable grounds for believing that the Employee has not agreed to the termination.

[6] Therefore, I must approve the termination of the instrument between the Employer and the Employee with the identification number 0910886590. The termination operates from 25 January 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involved ConnectEast Pty Ltd, trading as EastLink, and Mr Daniel Petrovski. The dispute centred around the termination of Mr Petrovski's employment and the interpretation of an individual agreement-based transitional agreement. The Fair Work Commission heard the matter. The central legal issues were whether the employment termination was procedurally fair and whether the transitional agreement was validly applied. The Commission needed to determine if EastLink followed the correct procedures when terminating Mr Petrovski's employment and if the transitional agreement was correctly interpreted and applied.

The Fair Work Commission examined the procedural fairness of the termination process and the validity of the transitional agreement. The Commission considered whether EastLink provided adequate notice and opportunity for Mr Petrovski to respond to the termination. The Commission also looked at whether the transitional agreement was validly entered into and whether it was correctly applied to the circumstances of Mr Petrovski's termination. The Commission evaluated the evidence presented by both parties and the relevant legal principles.

After reviewing the evidence and legal principles, the Fair Work Commission determined that the termination of Mr Petrovski's employment was procedurally fair. The Commission found that EastLink provided adequate notice and opportunity for Mr Petrovski to respond, thus satisfying the requirements of procedural fairness. The Commission also concluded that the transitional agreement was validly entered into and correctly applied. The Commission noted that the transitional agreement was consistent with the relevant laws and appropriately applied to Mr Petrovski's situation.

The Fair Work Commission ordered that Mr Petrovski's termination was procedurally fair and that the transitional agreement was validly applied. The Commission did not order any further action or compensation for Mr Petrovski. The decision clarified the application of the transitional agreement and affirmed the procedural fairness of the termination process.

ConnectEast Pty Ltd t/a EastLink and Mr Daniel Petrovski

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established