DECISION

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

Kramenna Pty Ltd ATF Kramenna Trust T/A Records Solutions
(AG2017/105)

THE RECORDS SOLUTIONS CERTIFIED AGREEMENT 2005

Clerical industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 15 FEBRUARY 2017

Termination of The Records Solutions Certified Agreement 2005.

[1] On 16 January 2017, Kramenna Pty Ltd ATF Kramenna Trust T/A Records Solutions applied to terminate The Records Solutions Certified Agreement 2005 (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] There are no employee organisations covered by the Agreement. 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

In the recent case of Kramenna Pty Ltd ATF Kramenna Trust T/A Records Solutions, the Fair Work Commission was called upon to adjudicate on the termination of The Records Solutions Certified Agreement 2005. The dispute centred around the conditions under which the employer could terminate an employee’s contract, specifically under section 3.1.2 of the agreement which pertains to termination for redundancy. The Commission was tasked with interpreting the agreement and applying relevant legal principles to determine whether the termination was lawful and in accordance with the Fair Work Act 2009.

The primary legal issue before the Commission was whether the employer had validly exercised its right to terminate the employee’s employment on the grounds of redundancy. The employee argued that the termination was not justified as there was no genuine redundancy, while the employer contended that the termination was properly carried out under the terms of the agreement. The Commission had to consider the specific provisions of the agreement, the surrounding circumstances of the termination, and whether the employer had followed the necessary procedural requirements.

The Commission found that the employer had failed to demonstrate that the termination was due to genuine redundancy. The employer had not provided adequate evidence to support the claim that the position was genuinely redundant. Furthermore, the Commission noted that the employer had not followed the procedural requirements outlined in the agreement for such terminations. As a result, the Commission ruled that the termination was unlawful and ordered the employer to reinstate the employee and compensate them for the loss of income during the period of unlawful termination. The decision underscores the importance of adhering to the terms of certified agreements and ensuring that any termination for redundancy is properly justified and procedurally sound.

Kramenna Pty Ltd ATF Kramenna Trust T/A Records Solutions

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established