Telstra Corporation Limited T/A Telstra

[2021] FWC 4701

[2021] FWC 4701

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 19 - Declaration for unilateral termination with FWC approval to terminate individual agreement

Telstra Corporation Limited T/A Telstra
(AG2021/6143)

COMMISSIONER HAMPTON ADELAIDE, 4 AUGUST 2021

Sch. 3, Item 19 – Declaration for unilateral termination with FWC approval to terminate individual agreements.

[1] On 7 April 2021, a Full Bench issued a Decision 1 concerning an application made by Telstra Corporation Limited T/A Telstra (Telstra) pursuant to Item 19 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act) to unilaterally terminate 3,516 individual agreement-based transitional instruments (IABTIs). The terminations were operative from 7 April and took effect on 6 July 2021.

[2] On 12 July 2021, Telstra made a further application to unilaterally terminate an additional 22 IABTIs comprising 19 Australian Workplace Agreements (AWAs) and 3 Individual Transitional Employment Agreements (ITEAs). This present application was referred to this arm of the Commission for consideration.

[3] Item 19 of Schedule 3 to the TPCA Act provides for the unilateral termination of an IABTI in the following circumstances:

19 Individual agreement-based transitional instruments

(1) This item applies to an employer or employee:

(a) to whom an individual agreement-based transitional instrument that has passed its nominal expiry date applies; and

(b) who want to terminate the transitional instrument.

(2) The employer or employee may:

(a) make a written declaration that identifies the transitional instrument and that states that the employer or employee wants to terminate the transitional instrument; and

(b) apply to the FWC for the approval of the termination.

(3) The employer or employee cannot make an application as mentioned in paragraph (2)(b) unless, at least 14 days before the day on which the application is made, the employer or employee gives the other of them a notice complying with the following requirements:

(a) the notice must identify the transitional instrument;

(b) the notice must state that the employer or employee intends to apply to the FWC for approval of the termination of the instrument;

(c) the notice must state that, if the FWC approves the termination, the transitional instrument will terminate on the 90^th day after the day on which the FWC makes the approval decision;

(d) If the notice is given by the employer:

(i) the notice must state whether, if the instrument terminates during the bridging period, one or more redundancy provisions in the instrument will continue to apply to the employee as provided for by item 38; and

(ii) if one or more redundancy provisions in the instrument will so continue to apply to the employee – the notice must include or be accompanied by a copy of the provision or provisions;

(e) the notice must comply with any other requirements of the regulations.

(4) The FWC must approve the termination if the FWC is satisfied that:

(a) the transitional instrument applies to the employer and the employee; and

(b) the requirements of subitems (2) and (3) have been complied with.

(5) If the FWC approves the termination, the transitional instrument terminates on the 90th day after the day on which the FWC makes the approval decision.

[4] The present application was accompanied by 2 declarations made on behalf of Telstra by Mr Darren Fewster, Executive – Transformation, Communications and People. The first declaring that Telstra gave each employee, to whom an AWA or ITEA applies, a notice that complied with the requirements of subitem 19(3) of Schedule 3 to the TPCA Act. The other declaration identified each of the transitional instruments and stated that the employer wants to terminate the transitional instruments in accordance with subitem 19(2).

[5] Having regard to the materials, on 12 July 2021 I issued directions indicating that the Commission held a provisional view that Telstra had complied with the requirements of the TPCA Act. These directions also provided an opportunity for the affected employees to advise the Commission if they opposed the provisional view or the application itself.

[6] No submissions were received opposing the expressed provisional view and no contact has been made with the Commission by or on behalf of the affected employees.

[7] As is apparent from the terms of Item 19 of Schedule 3 to the TPCA Act, the Commission’s role is quite limited, and it must approve the termination of an IABTI identified in the schedule to the application if it is satisfied that:

•  the IABTI applies to Telstra and the employee;

•  Telstra made the declaration required under subitem 19(2) of Schedule 3 to the TPCA Act; and

•  Telstra gave the employee the notice under subitem 19(3) of Schedule 3 to the TPCA Act,

regardless of whether or not the employee to whom the IABTI applies agrees to the termination.

[8] Having regard to the materials before the Commission and considering the terms of the TPCA Act, I confirm the provisional view and approve the termination of the 22 IABTIs identified with the application, operative from 4 August 2021.

[9] The termination of the IABTIs will take effect on 2 November 2021, being the 90^th day after they day on which the approval decision is made.

[10] Telstra is directed to ensure that each of the affected employees receives a copy of this Decision.

COMMISSIONER

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 1   [2021] FWCFB 1841.