Application by MBM Harvesting Solutions Pty Ltd

[2024] FWCFB 143 Note: A copy of the zombie agreement to which this decision relates (AC305609) is available on our website.]

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 MBM Harvesting Solutions Pty Ltd

(AG2023/4664)

MBM HARVESTING SOLUTIONS PTY LTD EMPLOYER GREENFIELDS AGREEMENT 2007

Agricultural industry

DEPUTY PRESIDENT WRIGHT

DEPUTY PRESIDENT SLEVIN
DEPUTY PRESIDENT GRAYSON

SYDNEY, 14 MARCH 2024

Application to extend the default period for the MBM Harvesting Solutions Pty Ltd Employer Greenfields Agreement 2007

Introduction

MBM Harvesting Solutions Pty Ltd has applied pursuant to subitem 26A(4) of Sch 3A to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) to extend the default period for the MBM Harvesting Solutions Pty Ltd Employer Greenfields Agreement 2007 (the Agreement). Sch 3A applies to Division 2B instruments approved by a State Industrial Relations body. However, the Agreement is a collective agreement-based transitional instrument and item 20A of Sch 3 applies.

We will consider the application as if it was made under subitem 20A(4) of Sch 3. Under subitem 20A(1) the Agreement was to terminate on 6 December 2023.

The application is made, in accordance with subitem 20A(6)(b), on the ground that it is reasonable in the circumstances to extend the default period where an enterprise agreement has been approved by the Commission under the Fair Work Act 2009 and the replacement agreement covers the same, or substantially the same, group of employees as are covered by the Agreement. At the time the application was made, the replacement agreement had not yet been approved by the Commission.

The Commission has since approved the replacement agreement.[1] The replacement agreement commenced operation on 6 March 2024. The purpose of the extension is to ensure the Agreement continued to apply for the period between the termination date of 6 December 2023 in subitem 20A(1) up until the replacement enterprise agreement commenced.

We are satisfied in these circumstances that for the purpose of subitem (6)(b) it is reasonable to extend the default period for the Agreement.

Pursuant to item 20A(4) of Sch 3 to the Transitional Act, we order that the default period for the Agreement is extended until 7 days after the approval decision of the new replacement agreement on 6 March 2024.

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

DEPUTY PRESIDENT

[1] [2024] FWCA 763.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Applicant, MBM Harvesting Solutions Pty Ltd, applied for an extension of the default period for the MBM Harvesting Solutions Pty Ltd Employer Greenfields Agreement 2007 (the Agreement) under subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act). The Agreement was set to terminate on 6 December 2023, but MBM Harvesting Solutions Pty Ltd sought an extension to ensure continuity of the Agreement until the new replacement agreement was approved by the Commission and commenced operation.

The primary legal issue the Commission had to determine was whether it was reasonable, in the circumstances, to extend the default period for the Agreement. The relevant provision, subitem 20A(6)(b) of Sch 3, permits such an extension if a new enterprise agreement has been approved by the Commission and covers the same or substantially the same group of employees as the Agreement.

The Commission found it reasonable to extend the default period for the Agreement because the replacement agreement, which covered the same group of employees, had been approved and was set to commence on 6 March 2024. The extension was intended to bridge the period between the Agreement's termination and the new agreement's effective date. This extension was deemed necessary to maintain the stability and continuity of employment terms during the transition period.

Consequently, the Commission ordered that the default period for the Agreement be extended until 7 days after the approval decision of the new replacement agreement on 6 March 2024. The Agreement was also published on the Fair Work Commission’s website as per subitem 20A(10A)(c) 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