Fair Work Commission

Introduction

Certain employees may be covered by an individual agreement made under previous legislative schemes, such as an Australian Workplace Agreement (AWA) or an Individual Transitional Employment Agreement (ITEA).

All individual agreements made under the Workplace Relations Act 1996 (Cth) (and preserved individual State agreements) have passed their nominal expiry date.

An individual agreement (an 'individual agreement-based transitional instrument') can be terminated in 3 ways:

• by agreement between the employee and employer and with the approval of the Fair Work Commission
• on application to the Commission after the nominal expiry date, or
• conditional upon the approval of an enterprise agreement.

Termination by agreement

See Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Sch 3, item 17

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 addition:

• a termination agreement must be signed by the employee and the employer
• if the employee is under 18, it must also be signed by a parent or guardian of the employee, and
• the signatures must be witnessed.

A termination has no effect unless it is approved by the Commission.

Making an application

If a termination agreement has been made, the employer or employee may apply to the Commission for approval of the termination agreement using Form F29.

The applicant needs to indicate at Question 1 on Form F29 that the application is being made under item 17, Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

The application must be accompanied by a copy of the termination agreement.^[1]

It must be made:

• within 14 days after the termination agreement was made, or
• if in all the circumstances the Commission considers it fair to extend that period – within such further period as the Commission allows.

Role of the Commission

If an application for the Commission to approve the termination agreement is made, the Commission must approve the termination of the individual agreement-based transitional instrument if satisfied that:

• the requirements for making the termination agreement have been complied with, and
• there are no other reasonable grounds for believing that the employee has not agreed to the termination.

The termination operates from the day specified in the Commission decision to approve the termination.

The parties will be notified by the Commission of the approval of the termination.

Termination after nominal expiry date

See Transitional Act Sch 3, item 19

All individual agreements made under the Workplace Relations Act 1996 (Cth) (and preserved individual State agreements) have passed their nominal expiry date.

Either the employer or the employee party to an individual agreement-based transitional instrument may apply to the Commission for the termination of the instrument.

Once the employer or the employee decides that they wish to terminate the instrument, the employer or employee may draw up a notice of intention to terminate the instrument. The notice of intention to terminate should be in the form of a written declaration:

• identifying the transitional instrument, and
• that states that the employer or employee wants to terminate the instrument.

The employer or employee cannot make an application to the Commission unless, at least 14 days before the day on which the application is made, the employer or employee gives the other a notice complying with the following requirements:

• the notice must identify the transitional instrument
• the notice must state that the employer or employee intends to apply to the Commission for approval of the termination of the instrument, and
• the notice must state that, if the Commission approves the termination, the transitional instrument will terminate on the 90th day after the day on which the Commission makes the approval decision.

Making an application

A person covered by the individual agreement-based transitional instrument may apply to the Commission for approval of the termination using Form F29.

The applicant needs to indicate at Question 1 on Form F29 that the application is being made under item 19, Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

The application must be accompanied by a statutory declaration made by a person authorised to do so indicating the facts establishing a basis for the Commission to be satisfied that the requirements for making the notice of intention to terminate the instrument and giving notice to the other party have been complied with, and a copy of the written notice of intention to terminate the instrument.^[2]

The statutory declaration must be completed truthfully. Under s.11 of the Statutory Declarations Act 1959 (Cth), a person who intentionally makes a false statement in a statutory declaration is guilty of an offence, the punishment for which is imprisonment for a term of 4 years.^[3]

Role of the Commission

The Commission must approve the termination if satisfied that:

• the individual agreement-based transitional instrument applies to the employer and the employee, and
• the requirements for making the notice of intention to terminate the instrument and giving notice to the other party have been complied with.

If the Commission approves the termination, the individual agreement-based transitional instrument terminates on the 90th day after the day on which the Commission makes the approval decision.

The parties will be notified by the Commission of the approval of the termination.

Conditional termination

See Transitional Act Sch 3, item 18

A conditional termination is an instrument that has the effect of terminating an individual agreement-based transitional instrument if an enterprise agreement covering the employee and the employer is subsequently made and comes into operation. If no enterprise agreement subsequently comes into operation, the transitional instrument will continue to operate.

A conditional termination must be in writing and signed by either the employee or the employer.

In addition:

• the signature must be witnessed, and
• if the conditional termination is signed by the employee, and the employee is under 18, it must also be signed by a parent or guardian of the employee.

The employer must give the employee a copy of the conditional termination if the conditional termination is signed by the employer.

When conditional termination comes into operation

The conditional termination must accompany any application to the Commission for approval of the enterprise agreement under section 185 of the Fair Work Act 2009.

If the requirements for making a conditional termination have been complied with, the transitional instrument terminates when the enterprise agreement comes into operation.

The parties will be notified by the Commission of the approval of the enterprise agreement.

Reference