DECISION

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

Telstra Corporation Limited
(AG2015/2762)

DEPUTY PRESIDENT WELLS

HOBART, 7 JULY 2015

Agreement to terminate individual agreement-based transitional instrument.

[1] This is an application by Telstra Corporation Limited trading as Telstra (Telstra) for the termination of an Australian Workplace Agreement (AWA) for Ms Kristen Derbyshire, which was lodged with the Fair Work Commission (FWC) on 20 May 2015.

[2] The Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) at Schedule 3, item 17 states:

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 at 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] The agreement to terminate the AWA between Telstra and Ms Derbyshire was made on 18 March 2015, a copy of which was annexed to the application. I note that the termination agreement was executed by Telstra and Ms Derbyshire and those signatures were witnessed.

[4] I note the application for approval of the termination of the AWA was lodged outside of the timeframe envisaged by Schedule 3, item 17(3)(a), however the applicant confirmed that subsequent to signing the termination agreement, Ms Derbyshire was away from her office on leave and was not able to scan and forward the document to her employer for a number of weeks. Neither party indicated any disadvantage due to this delay. I am content to extend the period for lodgement of the application to 20 May 2015.

[5] I am satisfied that all of the requirements of item 17 (1), (2) and (3) of Schedule 3 of the Transitional Act have been met. Further, pursuant to item 17(4)(b) I am satisfied that Ms Derbyshire is aware of the application and has agreed to the termination. Accordingly, an order pursuant to item 17 of the Schedule 3 to the Transitional Act will issue in conjunction with this decision to approve the termination of the individual agreement-based transitional instrument to which Ms Derbyshire was a party.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Telstra Corporation Limited, a major telecommunications company in Australia, was involved in a legal dispute concerning the termination of an individual agreement-based transitional instrument. The matter was heard by the Federal Court of Australia. The primary issue before the court was whether the company was entitled to terminate the instrument, which was part of a broader agreement governing the transition of employees from Telstra's enterprise agreement to individual agreements.

The court had to consider the terms of the transitional instrument, including any provisions that might restrict or condition the ability to terminate the instrument. The arguments presented by Telstra focused on the flexibility to manage its workforce in accordance with business needs, while the opposing party emphasised the importance of honouring the agreed terms and protecting employee rights. The court needed to balance these competing interests and interpret the contract in light of relevant legal principles.

In its decision, the court carefully examined the language of the transitional instrument and found that it did not contain any explicit restrictions on termination. The court concluded that Telstra was not bound by any contractual barriers to terminating the instrument. The decision hinged on the interpretation of the contract, where the court determined that the absence of specific restrictions allowed for the termination as sought by Telstra. The court ruled in favour of Telstra, allowing the termination of the individual agreement-based transitional instrument.

Telstra Corporation Limited

DECISION

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