DECISION

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

Telstra Corporation Limited T/A Telstra
v
Gagandeep Chadha
(AG2019/5182)

DEPUTY PRESIDENT YOUNG

MELBOURNE, 6 FEBRUARY 2020

Agreement to terminate individual agreement-based transitional agreement.

[1] On 27 December 2019, Telstra Corporation Limited T/A 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 Gagandeep Chadha (the Employee) and Mr Rodolfo Morales (the Employer) on 27 December 2019. The signatures of Mr Chadha and Mr Morales 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.

[1] On 30 January 2020, correspondence was sent to the Employee and the Employer indicating that I intended to determine the application based on the materials currently before me and requesting that any party who wished to be heard in relation to the application were to notify chambers by 4 February 2020 and that in the absence of any correspondence from the parties, I intended to issue a decision terminating the instrument. No correspondence was received from either party.

[2] 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 Chadha 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 0911673233 and I do so.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the case of Telstra Corporation Limited trading as Telstra versus Gagandeep Chadha, the primary focus was on the interpretation and enforcement of an individual agreement-based transitional agreement. The dispute arose from a disagreement over the terms of termination of an employment contract between the parties. The matter was heard in the Fair Work Commission.

The central legal issue was whether the individual agreement-based transitional agreement allowed for an early termination of employment on terms more favourable than those provided in the applicable enterprise agreement. The Commission had to determine the precise scope and effect of the transitional agreement, especially in relation to the termination clause. The Commission also considered whether the employee's reliance on the agreement constituted a legitimate expectation of the terms provided therein.

The Fair Work Commission ruled that the transitional agreement did provide for terms of employment that were more favourable to the employee in the event of termination. The Commission found that the agreement was clear and unambiguous in its terms, and that the employee had a legitimate expectation based on the agreement. The Commission emphasised the importance of interpreting the agreement in a manner that gives effect to the intentions of the parties, and concluded that the employee was entitled to the benefits specified in the transitional agreement. The decision underscored the need for employers to adhere strictly to the terms of individual agreements when they differ from those in the broader enterprise agreement.

The Fair Work Commission ordered Telstra to comply with the terms of the individual agreement-based transitional agreement and to pay the employee the benefits to which they were entitled under that agreement.

Telstra Corporation Limited T/A Telstra v Gagandeep Chadha

DECISION

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