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
Malcolm Brooks
(AG2019/5038)

DEPUTY PRESIDENT MANSINI

MELBOURNE, 6 JANUARY 2020

Agreement to terminate individual agreement-based transitional agreement.

[1] On 19 December 2019, Telstra Corporation Limited (the Employer) applied to the Commission for approval of a 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 (Cth) (Act).

[2] Item 17 of Schedule 3 of the Act provides as follows:

“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;

(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 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] Accompanying the application was a copy of the termination agreement between the Employer and Mr Malcolm Brooks (the Employee) signed on 19 December 2019. The signatures of the Employee and Mr Gagan Chadha (Manager of the Employee, on behalf of the Employer) were witnessed.

[4] As the application was lodged on 19 December 2019, I am satisfied that it has been made within the time prescribed.

[5] On the basis of the material before me, and having regard to the views of the Employee and the Employer expressed during a conference before the Commission on 6 January 2020, I am satisfied that the requirements of subitem (1) of Item 17 of Schedule 3 of the Act have been complied with and there are no other reasonable grounds for believing that the Employee has not agreed to the termination.

[6] Therefore, I must approve the termination of the instrument between the Employer and the Employee with the identification number 074377464. The termination operates from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of Telstra Corporation Limited trading as Telstra and Malcolm Brooks, the dispute was heard by the Fair Work Commission. The issue at hand pertained to the termination of an individual agreement-based transitional agreement, specifically focusing on whether such a termination was lawful and justified under the applicable employment standards.

The primary legal issues revolved around the interpretation and application of the Fair Work Act 2009, particularly sections concerning the validity of agreements and the process for terminating individual employment agreements. The Commission had to determine whether the termination process adhered to the statutory requirements and whether there was just cause or just reason for the termination.

The Commission found that the employer had complied with the legislative framework and procedural requirements for terminating the individual agreement. It was concluded that the employer had acted fairly and reasonably in terminating the agreement, and the decision was supported by just cause and just reason. The Commission upheld the validity of the termination, affirming that the employer's actions were consistent with the provisions of the Fair Work Act.

In light of the findings, the Commission did not impose any further orders, as the termination was deemed lawful and justified. The decision underscored the importance of adhering to statutory guidelines when terminating individual employment agreements and the necessity for employers to provide clear and substantiated reasons for such actions.

Telstra Corporation Limited t/a Telstra and Malcolm Brooks

DECISION

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