Application by DM & MT Nolan Pty Ltd

[2024] FWCFB 249

[2024] FWCFB 249 [Note: A copy of the zombie agreement to which this decision relates (AE873468) is available on our website.]

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 agreements made during the bridging period

Application by DM & MT Nolan Pty Ltd

(AG2023/4353)

NOLSTAFF (GATTON) ENTERPRISE AGREEMENT 2009

Private transport industry

DEPUTY PRESIDENT WRIGHT

DEPUTY PRESIDENT SLEVIN
DEPUTY PRESIDENT GRAYSON

SYDNEY, 2 MAY 2024

Application to extend the default period for the Nolstaff (Gatton) Enterprise Agreement 2009

1. Pursuant to subitem subitem 30(4) of Sch 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), DM & MT Nolan Pty Ltd has applied to extend the default period for the Nolstaff (Gatton) Enterprise Agreement 2009 (the Gatton Agreement) until 6 December 2024. Sch 7 applies to enterprise agreements made during the bridging period. Under subitem 30(1) the Agreement was to terminate on 6 December 2023.

1. The application is made in accordance with subitem (6)(a) on the grounds 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 Gatton Agreement and that it is appropriate to do so. The application was made after the notification time for the proposed enterprise agreement.

1. 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.

1. 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.

1. As the Full Bench observed in Suncoast Scaffolding Pty Ltd[2] the Commission has a discretion as to the length of the extension, subject to the limitation that the extension cannot be more than four years. The nature of the discretion is such that we are not bound to grant the period of extension sought in the application.[3]

1. In ISS Health Services Pty Ltd the Full Bench ordered an extension of 12 months in circumstances where bargaining for a replacement agreement was occurring. The Full Bench considered this sufficient time for a replacement agreement to be finalised in circumstances where there was some complexity in the bargaining including that the existing agreement covered a number of different sites, a diverse range of classifications and pay rates were linked to a South Australian public sector industrial instrument, and that a previous attempt at bargaining lasted for an extended period and did not succeed.

1. At the time that the application was made, the following six enterprise agreements applied to the Applicant and different groups of its employees:

(a) the Gatton Agreement;
(b) Nolstaff Employee Collective Agreement 2008 (Interstate);
(c) Nolstaff (Workshop) Employee Enterprise Agreement 2010;
(d) Nolstaff (VIC Depot) Enterprise Agreement 2011;
(e) Nolstaff (NSW Depot) Enterprise Agreement 2011; and
(f) Nolstaff (Administration) Enterprise Agreement 2010.

1. The Applicant submits that in mid-2023, it decided to commence bargaining for one single enterprise agreement which would cover the majority of its workforce and replace all of the agreements currently applying to its workforce, apart from Nolstaff Employee Collective Agreement 2008 (Interstate). This new enterprise agreement will also cover the Applicant’s operational staff who do not fall within the coverage of any of the enterprise agreements but fall within the coverage of the Road Transport and Distribution Award 2020. The Nolstaff Employee Collective Agreement 2008 (Interstate) was extended pursuant to item 20A(4) of Sch 3 to the Transitional Act to 6 May 2024[4] and replaced by the Nolan’s Transport Enterprise Agreement 2023 (Interstate) which commenced on 7 May 2024.[5]

1. Bargaining for the replacement agreement commenced in October 2023 and meetings have been occurring regularly since that time. The Applicant submits that the bargaining process is complicated by the logistical and administrative complexities associated with bargaining with a geographical disparate workforce.  The Applicant also submits the reversion of the relevant employees back to the underpinning modern award would adversely impact those employees, as the underpinning modern award contains less beneficial terms and conditions compared to the Gatton Agreement. The Transport Workers Union is a bargaining representative for the replacement agreement and has not advised the Commission of any objections to the application.

1. We are satisfied, based on the Applicant’s submissions, that there is significant complexity in negotiating a replacement agreement for five enterprise agreements and that the employees covered by Gatton Agreement will not be disadvantaged by extending the default period. For these reasons we are prepared to extend the default period of the Gatton Agreement until 6 December 2024.

1. Pursuant to item 30(6) of Sch 7 to the Transitional Act, we order that the default period for the Gatton Agreement is extended until 6 December 2024.

1. The Gatton Agreement is published, in accordance with subitem 30(9A)(c), on the Fair Work Commission’s website.

DEPUTY PRESIDENT

[1] [2023] FWCFB 122.

[2] [2023] FWCFB 105 at [18].

[3] See Suncaost Scaffolding Pty Ltd [2023] FWCFB 105 at [18] and Applications by APESMA [2023] FWCFB 137 at [31].

[4] [2024] FWCFB 206

[5] [2024] FWCA 1215

Printed by authority of the Commonwealth Government Printer

<AE873468 PR774458>