DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 19 - Declaration for unilateral termination with FWC approval to terminate individual agreement

Application by Telstra Corporation Limited T/A Telstra
(AG2021/399)

[1] On 19 February 2021, Telstra Corporation Limited T/A Telstra (Telstra) made an application (Application) to the Commission pursuant to Item 19 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act) to unilaterally terminate 3,516 individual agreement-based transitional instruments (IABTIs).

[2] The IABTIs comprise 2,886 Australian Workplace Agreements (AWAs) and 630 Individual Transitional Employment Agreements (ITEAs) and are listed in the schedule to the Application.

[3] Item 19 of Schedule 3 to the TPCA Act provides for the unilateral termination of an ITEA in the following circumstances:

19 Individual agreement-based transitional instruments

(1) This item applies to an employer or employee:

(a) to whom an individual agreement-based transitional instrument that has passed its nominal expiry date applies; and

(b) who want to terminate the transitional instrument.

(2) The employer or employee may:

(a) make a written declaration that identifies the transitional instrument and that states that the employer or employee wants to terminate the transitional instrument; and

(b) apply to the FWC for the approval of the termination.

(3) The employer or employee cannot make an application as mentioned in paragraph (2)(b) unless, at least 14 days before the day on which the application is made, the employer or employee gives the other of them a notice complying with the following requirements:

(a) the notice must identify the transitional instrument;

(b) the notice must state that the employer or employee intends to apply to the FWC for approval of the termination of the instrument;

(c) the notice must state that, if the FWC approves the termination, the transitional instrument will terminate on the 90^th day after the day on which the FWC makes the approval decision;

(d) If the notice is given by the employer:

(i) the notice must state whether, if the instrument terminates during the bridging period, one or more redundancy provisions in the instrument will continue to apply to the employee as provided for by item 38; and

(ii) if one or more redundancy provisions in the instrument will so continue to apply to the employee – the notice must include or be accompanied by a copy of the provision or provisions;

(e) the notice must comply with any other requirements of the regulations.

(4) The FWC must approve the termination if the FWC is satisfied that:

(a) the transitional instrument applies to the employer and the employee; and

(b) the requirements of subitems (2) and (3) have been complied with.

(5) If the FWC approves the termination, the transitional instrument terminates on the 90th day after the day on which the FWC makes the approval decision.

[4] On 11 January 2021 the Commission published a Fact Sheet on unilaterally terminating IABTIs. A copy of this fact sheet is available here.

[5] The Application was accompanied by a declaration made on behalf of Telstra by Mr Darren Fewster declaring that between 27 January 2021 and 4 February 2021, Telstra gave each employee to whom an AWA or ITEA applies a notice that complied with the requirements of subitem 19(3) of Schedule 3 to the TPCA Act.

[6] For completeness, we note that the Application was also accompanied by a covering letter from Telstra dated 19 February 2021 that noted:

‘Telstra is missing lodgement numbers for 271 instruments. Nominal expiry dates have been provided for these instruments, however there are 3 AWAs for which Telstra has not been able to find either the lodgement number or the nominal expiry date. Telstra has made all reasonable attempts to locate missing lodgement numbers and nominal expiry dates through:

•  searching Telstra’s historical data and archives;

•  liaising with the Library and Records team at the Commission on 5 and 6 January 2021, as well as the Director of Agreements at the Commission from 11 to 13 January 2021; and

•  the Fair Work Ombudsman (FWO) from 7 to 11 January 2021…

Despite our best efforts, and the efforts of the Commission and FWO staff, these details are unable to be obtained. Consequently, Telstra has provided all lodgement numbers and/or expiry dates available to us, the Commission and the FWO in the application.’

[7] Subrules 27(2) and (3) of the Fair Work Commission Rules 2013 require an employer that is seeking approval to terminate more than one IABTI under Item 19 of Schedule 3 of the TPCA Act to (among other things) provide the identification number or date of each instrument to be terminated and the nominal expiry date of each instrument. To the extent that the Application does not comply with rule 27, we dispense with these requirements under r.6(1) of the Rules.

[8] As is apparent from the terms of Item 19 of Schedule 3 to the TPCA Act, the Commission must approve the termination of an IABTI identified in the schedule to the Application if it is satisfied that:

•  the IABTI applies to Telstra and the employee;

•  Telstra made the declaration required under subitem 19(2) of Schedule 3 to the TPCA Act; and

•  Telstra gave the employee the notice under subitem 19(3) of Schedule 3 to the TPCA Act,

regardless of whether or not the employee to whom the IABTI applies agrees to the termination.

[9] Having regard to the material before us, it is our provisional view that Telstra has complied with the requirements of subitems (2) and (3) of the TPCA Act.

[10] We direct that Telstra, where practicable, provide each employee listed in the schedule to the Application with access to a copy of this decision by 4pm Monday, 8 March 2021.

[11] Any party opposed to our provisional view is to file a short written submission setting out their opposition by 4pm Monday, 15 March 2021. Any submissions in reply are to be filed by 4pm Wednesday, 18 March 2021. The submissions must be directed to the matters which are relevant to our decision, namely the matters set out in the three dot points in [8] above.

[12] All submissions are to be sent to member.assist@fwc.gov.au.

[13] In the event that there are no submissions opposing our provisional view we will approve termination of the IABTIs operative from 19 March 2021, with the termination to take effect on Thursday, 17 June 2021, being the 90th day after the day on which we make our approval decision. 1

PRESIDENT

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 1   Determined in accordance with s 36 of the Acts Interpretation Act 1901 (Cth).