Liverpool Catholic Club Ltd v Mrs Natalie McKenna

[2023] FWC 3244

[2023] FWC 3244

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 3, Item 17 - Application by agreement to terminate individual agreement-based transitional instrument

Liverpool Catholic Club Ltd
v

Mrs Natalie McKenna

(AG2023/4895)

DEPUTY PRESIDENT CROSS SYDNEY, 7 DECEMBER 2023

Agreement to terminate individual agreement-based transitional agreement

1. An application has been made by Liverpool Catholic Club Ltd (Applicant) pursuant to Item 17, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (FW (TPCA) Act) to terminate an individual agreement-based transitional instrument (Australian Workplace Agreement) made between the Applicant and an employee, Mrs Natalie McKenna.

1. The Applicant lodged a Form F29 – Application to terminate an agreement-based transitional instrument (Application).  

1. The Application attaches a copy of a signed termination letter between the Applicant employer and Mrs Natalie McKenna (Termination Letter). The Termination Letter records the agreement of the parties to terminate the Agreement. The Termination Letter was signed by Mrs Natalie McKenna and the Applicant employer on 28 November 2023. The signatures were witnessed.

1. Item 17 of Schedule 3 to the FW (TPCA) Act relevantly provides:

“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.”

1. I am satisfied that each of the requirements of subitems 17(1) and 17(3) to Schedule 3 of the FW (TPCA) Act have been met.

1. I have no reasonable grounds to believe that Mrs Natalie McKenna has not agreed to the termination.

1. Pursuant to Item 17 of Schedule 3 to the FW (TPCA) Act, the Fair Work Commission approves the termination of the individual agreement-based transitional instrument made between Liverpool Catholic Club Ltd and Mrs Natalie McKenna.

1. The termination operates from the date of this approval.

DEPUTY PRESIDENT

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