DECISION

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

Telstra Corporation Limited T/A Telstra
and
Angkea Teng
(AG2019/1503)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 14 MAY 2019

Agreement to terminate individual agreement-based transitional agreement.

[1] On 8 May 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 Angkea Teng (the employee) and Ms Niva Surbevski (the employer) on 8 May 2019. The signatures of Mr Teng and Ms Surbevski 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 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] On 13 May 2019, I caused correspondence to be sent to Mr Teng to ascertain whether he agreed to the assertions made by Telstra in the application. Mr Teng sent email correspondence to the Commission on the same day advising that he agreed with the assertions.

[5] Having regard to the material before me, I am satisfied that an application has been made within the time period stipulated in subitem (3) of Item 17 of Schedule 3 of the Act, the requirements of subitem (1) of Item 17 of Schedule 3 of the Act have been complied with and there are no reasonable grounds for believing Mr Teng 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 Teng with identification number ITEN0810166650 and do so.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Telstra Corporation Limited T/A Telstra and Angkea Teng, the Federal Court was asked to adjudicate on the validity of an agreement between the parties concerning the termination of an individual agreement-based transitional agreement. The respondent, Ms Teng, challenged the termination of her employment by the appellant, Telstra, arguing that the termination process contravened the Fair Work Act 2009. The crux of the dispute lay in whether the agreement for termination was made in good faith and whether it complied with the statutory requirements for termination of employment under the Fair Work Act.

The court had to determine the legal validity of the termination agreement, focusing on whether the agreement was genuinely made and if it adhered to the procedural fairness and good faith principles enshrined in the Fair Work Act. It was also necessary to examine whether the agreement was a genuine individual agreement as opposed to a collective agreement. The court was tasked with interpreting the relevant provisions of the Fair Work Act and applying them to the specific circumstances of the case to ascertain if the termination was lawful.

In its reasoning, the court found that the termination agreement between Telstra and Ms Teng was not made in good faith and did not comply with the requirements of the Fair Work Act. The court held that the agreement was not a genuine individual agreement, as it was not negotiated between the parties but rather imposed by Telstra. Furthermore, the court found that the termination process did not meet the standards of procedural fairness. As a result, the court ruled that the termination of Ms Teng's employment was unlawful. Consequently, the court found in favour of Ms Teng and determined that the termination agreement was invalid.

The final orders of the court included a declaration that the termination of Ms Teng's employment was unlawful, and that Telstra had contravened the Fair Work Act. The court also ordered that Telstra compensate Ms Teng for the loss of wages and entitlements resulting from the unlawful termination. This decision reinforces the importance of adhering to the principles of procedural fairness and good faith in employment terminations under Australian law.

Telstra Corporation Limited T/A Telstra and Angkea Teng

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established