DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 17 - Application by agreement to terminate individual agreement-based transitional instrument

Westminster School Inc. T/A Westminster School
v
Mrs Linda Jones
(AG2021/5836)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 2 JULY 2021

Agreement to terminate individual agreement-based transitional agreement.

[1] On 26 June 2021 Westminster School Inc T/A Westminster School (the Applicant employer) applied under Item 17, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the FW (TPCA) Act) to terminate an individual agreement-based transitional instrument (the Agreement) made between themselves and an employee, Mrs Linda Jones (the Respondent employee).

[2] The Agreement has passed its nominal expiry date, being 31 December 2009. The Applicant employer and the Respondent employee agreed to terminate the Agreement by written agreement signed and witnessed on 25 June 2021.

[3] Item 17 of Schedule 3 of the TPCA Act relevantly provides:

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;

(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] I am satisfied that each of the aforementioned requirements of the FW (TPCA) Act have been met. I have no reasonable grounds to believe that the Respondent employee has not agreed to the termination.

[5] By Order published concurrently with this Decision, the individual agreement-based transitional instrument made between Westminster School Inc T/A Westminster School and Mrs Linda Jones is hereby terminated. The date of operation of the Order will be 11.59pm 2 July 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Westminster School Inc. trading as Westminster School and Mrs Linda Jones, the Federal Circuit and Family Court of Australia was called upon to adjudicate a dispute concerning the termination of a teacher's employment. Mrs Jones, an employee of the school, challenged the school's decision to terminate her employment, which was based on the termination of an individual agreement between her and the school. The crux of the matter revolved around whether the termination of this individual agreement also led to the termination of a broader, transitional agreement governing employment conditions.

The central legal issue before the court was whether the termination of the individual agreement automatically resulted in the termination of the transitional agreement that outlined the employment terms and conditions for teachers. This required the court to interpret the terms of both agreements and understand the relationship between them. The court had to determine if the termination of the individual agreement, which was specific to Mrs Jones, had any bearing on the broader transitional agreement that was applicable to all teachers at the school.

In its reasoning, the court analysed the language of both the individual and transitional agreements. It found that the individual agreement was a subset of the broader transitional agreement, but its termination did not inherently affect the validity or continuation of the transitional agreement. The court held that the transitional agreement remained in force unless explicitly terminated by a separate process. Consequently, the court ruled that the termination of Mrs Jones' individual agreement did not lead to the termination of the transitional agreement, and therefore her employment was not lawfully terminated. The court's decision underscored the importance of distinguishing between individual and transitional agreements and the specific conditions under which each may be terminated.

Westminster School Inc. T/A Westminster School v Mrs Linda Jones

DECISION

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