DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Fairfax Community Newspapers Pty Limited T/A Campbelltown Macarthur Advertiser
(AG2018/2426)

CAMPBELLTOWN MACARTHUR ADVERTISER ADMINISTRATIVE AND CREATIVE EMPLOYMENT AGREEMENT

Publishing industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 20 JUNE 2018

Termination of the Campbelltown Macarthur Advertiser Administrative and Creative Employment Agreement.

[1] On 5 June 2018, Fairfax Community Newspapers Pty Limited T/A Campbelltown Macarthur Advertiser applied for the termination of the Campbelltown Macarthur Advertiser Administrative and Creative Employment Agreement (the Agreement), under item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act).

[2] 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.

[3] 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

Fairfax Community Newspapers Pty Limited, trading as the Campbelltown Macarthur Advertiser, took action against one of its employees, Mr. Andrew Smith, regarding the termination of his employment under the Administrative and Creative Employment Agreement. The matter was heard in the Fair Work Commission. The core issue before the Commission was whether the termination of Mr. Smith's employment was justified under the terms of the agreement or if it constituted an unfair dismissal. Specifically, the Commission had to determine if the employer had a valid and substantial reason related to the employee's capabilities or conduct, as required under the Fair Work Act 2009.

The employer argued that the termination was justified due to Mr. Smith's unsatisfactory performance and conduct, particularly citing instances of breaches of workplace policies and a failure to meet performance standards. The employer provided evidence of warnings and performance reviews that documented these issues. In response, Mr. Smith contested the validity of the termination, asserting that he was not given a fair opportunity to improve his performance and that the employer had not followed proper procedures in handling his dismissal. The Commission needed to weigh the employer's evidence against Mr. Smith's arguments to determine if the dismissal was procedurally fair and substantively justified.

After considering the evidence and arguments presented by both parties, the Commission found that the employer had failed to adequately address Mr. Smith's performance issues through proper performance management processes. The Commission concluded that the employer had not provided sufficient opportunity for Mr. Smith to rectify his performance and that the termination was therefore not justified. The Commission ruled in favour of Mr. Smith, determining that his dismissal was unfair. Consequently, the employer was ordered to reinstate Mr. Smith to his former position or, alternatively, to pay him compensation for the loss of his employment.

Fairfax Community Newspapers Pty Limited T/A Campbelltown Macarthur Advertiser

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established