Application by Mel & Mel Enterprises Pty Ltd T/A Subway Murray Bridge And Subway Tailem Bend

[2024] FWCFB 134 Note: A copy of the zombie agreement to which this decision relates (AC321033) 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 instrument

Application by Mel & Mel Enterprises Pty Ltd T/A Subway Murray Bridge And Subway Tailem Bend

(AG2023/4907)

MEL & MEL ENTERPRISES PTY LTD EMPLOYEE COLLECTIVE AGREEMENT
Retail Industry
DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT O’KEEFFE COMMISSIONER LIM	SYDNEY, 13 MARCH 2024

Application to extend the default period for Mel & Mel Enterprises Pty Ltd Employee Collective Agreement

On 5 December 2023, Mel & Mel Enterprises Pty Ltd applied pursuant to subitem 20A(4) of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act), to extend the Mel & Mel Enterprises Pty Ltd Employee Collective Agreement (the Agreement).

The application is made in accordance with subitem 20A(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 Agreement and that it is appropriate to do so. The notification time for the proposed enterprise agreement was 13 November 2023. The application was therefore made after the notification time for the proposed enterprise agreement.

The applicant seeks an extension of the default period of the Agreement until 30 May 2024 or seven days after a decision has been made regarding the approval of the proposed Agreement, whichever is earlier.

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 30 May 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 30 May 2024.

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

DEPUTY PRESIDENT

[1] [2023] FWCFB 122

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Mel & Mel Enterprises Pty Ltd, trading as Subway Murray Bridge and Subway Tailem Bend, applied to the Fair Work Commission for an extension of the default period of their existing employee collective agreement. The application was made under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The company sought an extension until 30 May 2024 or seven days after a decision on the approval of a proposed new agreement, whichever is earlier. This request followed the notification of a new enterprise agreement on 13 November 2023, and the application was filed post this notification.

The court had to determine whether the requirements for extending the default period, as outlined in subitem 20A(6) of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, were met. Specifically, the court needed to ascertain if the company was engaged in bargaining for a replacement agreement that would cover the same or a substantially similar group of employees as the existing agreement. The court also had to assess whether it was appropriate to extend the default period to allow sufficient time for the negotiation and approval of the new agreement.

The Full Bench found that the application met the criteria for an extension as stipulated in subitem 20A(6)(a) of the Act. They were satisfied that bargaining for a new agreement was underway and that extending the default period until 30 May 2024 was reasonable to allow time for the new agreement to be made and approved. The court granted the application, extending the default period of the existing agreement accordingly. This decision was published on the Fair Work Commission's website as required by law.

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