Application by ADFA Jamison Pty Ltd T/A Amora Hotel Jamison Sydney

[2024] FWCFB 138

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 3, Item 20A(4) - Application to extend default period for agreement-based transitional instruments

Application by ADFA Jamison Pty Ltd T/A Amora Hotel Jamison Sydney

(AG2023/4329)

Hospitality industry
DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT SLEVIN DEPUTY PRESIDENT GRAYSON	SYDNEY, 19 MARCH 2024

Application to extend the default period for the Amora Hotel Jamison Sydney – Employee Collective Agreement 2007-2012

Pursuant to subitem 20A(4) of Sch 3 to the Fair  Work  (Transitional  Provisions  and Consequential  Amendments)  Act  2009 (Cth) (Transitional Act), ADFA Jamison Pty Ltd T/A Amora Hotel Jamison Sydney has applied to extend the  default  period  for the  Amora Hotel Jamison Sydney – Employee Collective Agreement 2007-2012 (the Agreement).

The application is made in accordance with subitem 20A(6)(a) on the ground that bargaining is occurring for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as are covered by the Agreement and that it is appropriate to do so. The application was made after the notification time for the proposed enterprise agreement.

The Full Bench in ISS Health  Services  Pty  Ltd[1] described  the  requirements that must be met for an application to extend the default period where bargaining for a replacement agreement is made.

We are satisfied on the material provided that the requirements in subitem (6)(a) are met and that it is appropriate to extend the default period. The applicant has commenced bargaining for a replacement agreement and we consider that an extension until the 14 July 2024 is sufficient time for a replacement agreement to be made and approved.

Pursuant to item 20A(6) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), we order that the default period for the Agreement, is extended until 14 July 2024.

The Agreement is published, in accordance with subitem 20A(10A) of the Transitional Act, on the Fair Work Commission’s website.

DEPUTY PRESIDENT

[1] [2023] FWCFB 122 at [4]

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

ADFA Jamison Pty Ltd, trading as Amora Hotel Jamison Sydney, applied to the Fair Work Commission to extend the default period for the Amora Hotel Jamison Sydney – Employee Collective Agreement 2007-2012. The application was made under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, specifically subitem 20A(4). The applicant sought to extend the default period on the basis that negotiations were underway for a new enterprise agreement that would cover the same, or substantially the same, group of employees as the existing agreement. The application was made after the required notification period for the proposed enterprise agreement had elapsed.

The legal issues before the court involved determining whether the requirements for extending the default period, as set out in subitem 20A(6)(a) of the Act, were met. These requirements included whether bargaining for a replacement agreement was indeed occurring and whether it was appropriate to extend the default period. The Full Bench had previously outlined the criteria for such an extension in ISS Health Services Pty Ltd, where it was established that the applicant must demonstrate ongoing negotiations and the appropriateness of an extension.

The court found that the applicant had satisfied the necessary requirements for extending the default period. The evidence presented indicated that bargaining for a replacement agreement was actively occurring, and the court considered that an extension until 14 July 2024 was sufficient to allow for the completion and approval of the new agreement. Consequently, the Full Bench granted the application and extended the default period for the Agreement until 14 July 2024. The agreement was subsequently published on the Fair Work Commission's website as required by subitem 20A(10A) of the Transitional Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established