Telstra Corporation Limited and Duc Thach

[2019] FWC 4600

[2019] FWC 4600

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 17 Sch. 3—Termination of transitional instrument

Telstra Corporation Limited
and
Duc Thach
(AG2019/2177)

DEPUTY PRESIDENT MASSON MELBOURNE, 3 JULY 2019

Agreement to terminate individual agreement-based transitional instrument.

[1] On 21 June 2019, Telstra Corporation Limited T/A Telstra (Telstra) made an application for approval of termination of an individual agreement based transitional instrument pursuant to Item 17 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Act).

[2] The application was accompanied by a copy of the termination agreement signed by Mr Duc Thach (the employee) and Mr Michael Young (the employer) on 21 June 2019. The signatures of Mr Thach and Mr Young were witnessed.

[3] Item 17 of Schedule 3 of the Act provides:

(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 sub item (3), the FWC must approve the termination of the instrument if:

(a) the FWC is satisfied that the requirements of sub item (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 sub item (4), the termination operates from the day specified in the decision to approve the termination.

[4] On 26 June 2019, correspondence was sent to Mr Thach to ascertain whether he agreed to the assertions made by Telstra in the application, and it was noted that in the absence of a response from Mr Thach the transitional instrument may be terminated. Mr Thach did not provide a response to the correspondence.

[5] Having regard to the material before me, I am satisfied that an application has been made within the time period stipulated in sub item (3) of Item 17 of Schedule 3 of the Act, the requirements of sub item (1) of Item 17 of Schedule 3 of the Act have been complied with and there are no reasonable grounds for believing Mr Thach has not agreed to the termination. Accordingly, I must approve the termination of the individual agreement based transitional instrument between Telstra Corporation Limited T/A Telstra and Mr Thach with identification number ITEN910746164 and do so.

[6] The termination operates from the date of this decision.

DEPUTY PRESIDENT

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