A.C.N. Orchards Pty Ltd
[2024] FWCFB 285
•11 JUNE 2024
| [2024] FWCFB 285 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 7, Item 30(4) - Application to extend default period for enterprise agreement made during the bridging period
A.C.N. Orchards Pty Ltd
(AG2024/1243)
2009 ACN ORCHARDS PTY LTD EMPLOYEE ENTERPRISE AGREEMENT
| Agricultural industry | |
| DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT SLEVIN COMMISSIONER CRAWFORD | SYDNEY, 11 JUNE 2024 |
Application to extend the default period for the 2009 ACN Orchards Pty Ltd Employee Enterprise Agreement
Pursuant to item 30(4) of Sch 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Act), Sarah Crane (the Applicant) has applied to extend the 2009 ACN Orchards Pty Ltd Employee Enterprise Agreement.
The Transitional Act provides for the automatic sunsetting of agreement-based transitional instruments by the end of the default period on 6 December 2023, subject to the capacity to apply to the Commission for an extension of that period for up to four years in prescribed circumstances.
Subitem 30(4) permits an employer covered by the agreement, an employee covered by the agreement, or an industrial association entitled to represent an employee covered by the agreement to make application to extend the agreement. The application must be made before the end of the grace period.
The grace period is defined in the subitem 30(2) as the period of 12 months beginning on the day Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (SJBP) commences. Part 13 of Schedule 1 to the SJBP Act commenced on 6 December 2022. Consequently, applications made under the Transitional Act to extend the default period of an agreement could only be made up until the end of 6 December 2023. There is no provision that permits the Commission to extend the time for the making of such applications.
The current application was made on 12 April 2024 which is after the end of the grace period. On 14 April 2024 the Commission wrote to the Applicant advising that the application was made out of time and if the zombie agreement has not been previously extended then it no longer operates and cannot be extended. The Applicant was asked to advise the Commission whether they would like to withdraw their application on this basis however no response was received.
The Transitional Act requires applications of this kind to be made before the end of the grace period. It does not permit the Commission to consider applications made after that time. The application is out of time and the Commission has no jurisdiction to deal with it.
The application is dismissed.
DEPUTY PRESIDENT
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