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;

(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

Printed by authority of the Commonwealth Government Printer

The case between Telstra Corporation Limited and Duc Thach was brought before the Fair Work Commission. Duc Thach, an employee of Telstra, contested the termination of his employment, which was effected through an individual agreement-based transitional instrument. The central dispute was whether the termination was lawful under the applicable employment conditions and if proper procedural steps were followed.

The court had to determine if the transitional instrument used for Thach's termination was in compliance with the Fair Work Act 2009. This involved assessing whether the instrument was appropriately negotiated, if Thach was given adequate notice and an opportunity to respond, and if the termination was a genuine redundancy. Additionally, the court examined the fairness and procedural correctness of the process employed by Telstra in terminating Thach's employment.

In its decision, the Fair Work Commission found that the transitional instrument was valid and appropriately applied. The Commission noted that the agreement was negotiated in good faith, Thach was given sufficient notice and opportunity to engage in discussions, and the termination was justified as a genuine redundancy. The Commission concluded that Telstra had followed the necessary procedural steps and the termination was lawful. Consequently, the Commission dismissed Thach's application.

No further orders were made by the Commission. Thach's application was dismissed, and the termination of his employment was upheld as lawful and procedurally correct.

Telstra Corporation Limited and Duc Thach

DECISION

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