Application by XL Express (Corporate) Pty Ltd

[2024] FWCFB 157

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 XL Express (Corporate) Pty Ltd

(AG2023/4692)

NATIONAL TRANSPORT OPERATIONS PTY LTD CERTIFIED AGREEMENT 2002

Private transport industry

DEPUTY PRESIDENT WRIGHT

DEPUTY PRESIDENT SLEVIN
DEPUTY PRESIDENT GRAYSON

SYDNEY, 18 MARCH 2024

Application to extend the default period for the National Transport Operations Pty Ltd Certified Agreement 2002

Introduction

Pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 XL Express (Corporate) Pty Ltd has applied to extend the default period for the National Transport Operations Pty Ltd Certified Agreement 2002 (the Agreement). 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 5 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 for the purpose of subitem (6)(b) that 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 5 March 2024.

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

DEPUTY PRESIDENT

[1] [2024] FWCA 746.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of XL Express (Corporate) Pty Ltd, the Fair Work Commission was tasked with determining whether the default period for the National Transport Operations Pty Ltd Certified Agreement 2002 should be extended. The application was made by XL Express, which sought to extend the period until a new enterprise agreement could come into effect. The original agreement was set to terminate on 6 December 2023, but XL Express argued for an extension to ensure continuity until the new agreement was approved and operational. This request was based on the provisions of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, specifically subitem 20A(4).

The legal issues before the Commission involved interpreting the statutory provisions that govern the extension of default periods for certified agreements and determining whether the extension was reasonable under the circumstances. The Commission had to assess whether the application met the criteria set out in subitem 20A(6)(b) of the Act, which requires that it be reasonable to extend the default period if a new enterprise agreement has been approved and covers the same or substantially the same group of employees. The application was made before the new agreement was approved, but the Commission had to consider the subsequent approval of the new agreement in its decision.

The Fair Work Commission found that the extension was reasonable given that the new enterprise agreement had since been approved and would cover the same group of employees. The Commission noted that the purpose of the extension was to ensure there was no gap in coverage between the termination of the old agreement and the commencement of the new one. Accordingly, the Commission ordered the extension of the default period for the Agreement until seven days after the approval of the new agreement on 5 March 2024. The decision was in line with the legislative intent to provide a seamless transition for employees and employers.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established