Vanessa Saunders and Calibre Safety Services Pty Ltd

[2019] FWC 7869

[2019] FWC 7869

FAIR WORK COMMISSION

DECISION

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

Vanessa Saunders and Calibre Safety Services Pty Ltd
(AG2019/4218)

DEPUTY PRESIDENT BEAUMONT PERTH, 18 NOVEMBER 2019

Agreement to terminate individual agreement-based transitional instrument – agreement lodged after 14 days – extension of period - fair

[1] The termination of the individual agreement-based transitional instrument between Ms Vanessa Saunders and Calibre Safety Services Pty Ltd (Calibre) with identification number 077259343 is approved. 1 The termination has effect from the date of this decision. My reasons follow.

[2] The parties made a termination agreement (the Agreement) compliant with item 17 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (TPCA Act), on 20 August 2019. The application accompanying the Agreement was similarly dated 20 August 2019. However, the application and the Agreement were lodged with the Fair Work Commission on 5 November 2019.

[3] Subitem 17(3) of the TPCA Act states:

(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] Further, subitem 17(4) of the TPCA Act states:

(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] Because the application was lodged some 77 days after the Agreement was executed, consideration turns to whether it is fair to extend the period in which the application was made. 2 The parties were asked for reasons for the late lodgement. The explanation provided to the Commission was succinct and included the following detail:

The discrepancy between the dates of re-contracting, the date on the application and the posting date were due to inadvertent HR errors.

[6] Neither party contended that the delay in lodgement was prejudicial, and the reasons provided for the late lodgement appear plausible.

[7] Calibre provided to the Commission an employment contract dated 29 April 2019, which was accompanied by a covering letter referring to the transfer of Ms Saunders’ employment to the employment contract. Ms Saunders had signed the employment contract. Based on the facts that Ms Saunders had consented to the Agreement, and in addition, signed the employment contract, there is no evidence suggestive of other reasonable grounds for believing Ms Saunders has not agreed to the termination of the individual agreement-based transitional instrument.

[8] I am satisfied that the requirements in subitem 1 of item 17 of Schedule 3 of the TPCA Act have been complied with, and that there are no reasonable grounds for the Commission to believe that Ms Saunders has not agreed to the termination of the individual agreement-based transitional instrument. I am therefore required to approve the termination of the individual agreement-based transitional instrument.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR714390>

 1   Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Item 17 of Schedule 3.

 2   Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) subitem 17(3)(b) of Item 17 of Schedule 3.