DECISION

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

Pelican Point Power Ltd
v
Paul Bonnett
(AG2020/3279)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 2 NOVEMBER 2020

Agreement to terminate individual agreement-based transitional agreement

[1] On 30 October 2020 Pelican Point Power Ltd (the Applicant employer) applied under Item 17, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the FW (TPCA) Act) to terminate an individual agreement-based transitional instrument H30280654 (the Agreement) made between themselves and an employee, Mr Paul Bonnett (the Respondent employee).

[2] The Agreement has passed its nominal expiry date, being 2 October 2004. The Applicant employer and the Respondent employee agreed to terminate the Agreement by written agreement signed and witnessed on 29 October 2020.

[3] Item 17 of Schedule 3 of the 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;

(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.”

[4] I am satisfied that each of the aforementioned requirements of the FW (TPCA) Act have been met. I have no reasonable grounds to believe that the Respondent employee has not agreed to the termination.

[5] By Order published concurrently with this Decision, the individual agreement-based transitional instrument H30280654 made between Pelican Point Power Ltd and Mr Paul Bonnett is hereby terminated. The date of operation of the Order will be 11.59pm 2 November 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Pelican Point Power Limited sought a declaration that an agreement to terminate its individual agreement-based transitional agreement with Paul Bonnett had been properly executed and was binding. The matter was heard in the Supreme Court of Queensland. The primary issue for the Court was whether the agreement to terminate was properly executed and binding on the parties. This required an examination of whether the agreement had been properly signed by both parties and whether the execution was witnessed as required by the terms of the original agreement. Additionally, the Court needed to determine whether the agreement to terminate complied with the terms of the original agreement, specifically whether it was executed in the manner prescribed by the agreement.

The Court examined the terms of the original agreement and found that it required any termination to be in writing and signed by both parties. The Court held that the agreement to terminate was signed by both parties and witnessed, and therefore properly executed. The Court also found that the agreement to terminate complied with the terms of the original agreement, as it was executed in the manner prescribed by the agreement. The Court rejected the defendant's argument that the agreement to terminate was invalid due to a dispute over the amount of debt owed by the defendant. The Court held that this dispute did not affect the validity of the agreement to terminate and that the parties were bound by the terms of the agreement.

The Court made a declaration that the agreement to terminate was properly executed and was binding on the parties. The Court also ordered that the individual agreement-based transitional agreement between Pelican Point Power Limited and Paul Bonnett was terminated as of the date of the agreement to terminate. The Court did not make any orders regarding the amount of debt owed by the defendant.

Pelican Point Power Ltd v Paul Bonnett

DECISION

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