Fair Work Commission

Individual agreements

Individual agreements include Australian Workplace Agreements (AWAs) and Individual Transitional Employment Agreements (ITEAS).

All individual agreement-based transitional instruments have passed their nominal expiry date.

Termination by agreement

Employers and employees may agree to terminate an individual agreement-based transitional instrument by making a termination agreement.

A termination agreement should state:

• the name of the employer
• the name of the employee
• the AWA or ITEA identification number
• the employee's date of birth, and
• that both parties agree to the termination and acknowledge that it will not take effect until the date specified in the Fair Work Commission decision to approve the termination.

A termination agreement must be:

• written in English
• signed by both parties
• dated, and
• witnessed (witnesses must sign below the employer and employee).

If the employee is under 18 years of age, the employee's parent or guardian must also sign the termination agreement.

A termination agreement has no effect unless it is approved by the Fair Work Commission. The termination operates from the day specified in the Fair Work Commission decision to approve the termination.

How to apply

If a termination of an AWA or ITEA has been agreed to, a person covered by the agreement must apply to the Commission for approval of the termination agreement using Form F29.

The applicant needs to indicate on the 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.

It must be made:

• within 14 days after the termination agreement was made
• within such further period as the Fair Work Commission allows.

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

Unilateral termination

As all individual agreement-based transitional instruments have now passed their nominal expiry date, either of the parties to the agreement may apply to the Commission for the termination of the agreement.

Once the employer or the employee decides that they wish to terminate the AWA or ITEA, they must draw up a Notice of intention to terminate the AWA or ITEA.

A Notice of intention to terminate the AWA or ITEA should be written in English and state:

• the name of the employer
• the name of the employee
• the AWA or ITEA number
• that the employer or employee (whichever is relevant) wants to terminate the transitional instrument and intends to apply to the Fair Work Commission for approval of the termination, and 
• that, if the Commission approves the termination, the AWA or ITEA will terminate on the 90th day after the day on which the Commission makes the approval decision.

The Notice of intention to terminate the AWA or ITEA must be given to the other party to the agreement at least 14 days before an application for the approval of the termination is made to the Commission.

An AWA or ITEA terminates on the 90th day after the day on which the Commission makes the decision to approve the termination.

How to apply

A person covered by the agreement must apply to the Commission for approval of the termination using Form F29.

The applicant needs to indicate on the 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 employer or employee seeking to terminate the AWA or ITEA must make a statutory declaration. The statutory declaration must declare that:

• that the person making the declaration wishes to terminate the AWA or ITEA
• they have served the Notice of intention to terminate the AWA or ITEA upon the other relevant party
• the date on which they served the notice, and
• that the notice attached to the Form F29 is an exact copy of the notice that was served.

The application must be accompanied by a copy of the Notice of intention to terminate the AWA or ITEA and the statutory declaration.

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

Termination conditional on proposed enterprise agreement

Employers and employees may agree to terminate an individual agreement-based transitional instrument by making a conditional termination. A conditional termination has the effect of terminating an AWA or ITEA if a proposed enterprise agreement is made that covers the employee and the employer, and the proposed enterprise agreement comes into operation.

A conditional termination should have the heading Conditional termination of AWA or ITEA, and should state:

• the name of the employee
• the name of the employer
• the AWA or ITEA identification number
• the nominal expiry date of the AWA or ITEA, and
• that the AWA or ITEA terminates when the proposed enterprise agreement comes into operation.

A conditional termination must be:

• written in English
• signed by at least one party
• dated, and 
• witnessed (witnesses must sign below the parties).

If the employee is under 18 years of age, the employee's parent or guardian must also sign the conditional termination.

The employer must give the employee a copy of the conditional termination, and a copy must be submitted to the Commission with the application to approve the proposed enterprise agreement. The AWA or ITEA terminates when the proposed enterprise agreement comes into operation.

Continuous operation of agreements

Under the Fair Work Act 2009, agreements continue to operate after their nominal expiry date until they are replaced or terminated. Through provisions in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, agreements made under previous legislation continue to have effect as agreement-based transitional instruments.