Arc @ UNSW Limited

[2024] FWCFB 227 [Note: A copy of the zombie agreement to which this decision relates (AC326155) 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

Arc @ UNSW Limited

(AG2024/1107)

ARC EMPLOYEE COLLECTIVE AGREEMENT 2009

DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT SLEVIN DEPUTY PRESIDENT GRAYSON

SYDNEY, 22 APRIL 2024

Application to extend the default period for the Arc Employee Collective Agreement 2009

Pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), Arc @ UNSW Limited has applied to extend the default period for the Arc Employee Collective Agreement 2009 (the Agreement).

The Applicant lodged an earlier application on 22 November 2023 pursuant to 20A(4) of Sch 3 to the Transitional Act to extend the default period of the Agreement until 7 April 2024. In a decision issued on 12 February 2024 the Full Bench considered that the requirements in subitem (6)(a) were met and it was appropriate in the circumstances to extend the Agreement. The Full Bench ordered that the default period for the Agreement be extended until 6 April 2024 to allow time for a replacement agreement to be made and approved.[1]

The current application lodged on 5 April 2024 seeks to extend the agreement until 7 August 2024. The application was made, in accordance with subitem (6)(b), on the ground that it is reasonable in the circumstances to extend the default period in circumstances where an enterprise agreement has been made that covers the same employees covered by the Agreement and an application has been made to have the replacement agreement approved by the Commission under the Fair Work Act 2009. An application to approve the replacement agreement was lodged with the Commission on 8 March 2024. At the time the current application was made the replacement agreement had not yet been approved by the Commission.

The Commission has since approved the replacement agreement.[2] The replacement agreement will commence operation on 19 April 2024. The purpose of the extension is to ensure the Agreement continued to apply for the period between the extended date of 6 April 2024 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 26 April 2024.

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

DEPUTY PRESIDENT

[1] [2024] FWCFB 74.

[2] [2024] FWCA 1317.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties to the proceedings were Arc @ UNSW Limited and the United Workers Union (UWU). The dispute related to an application by the UWU to extend the default period for the Arc Employee Collective Agreement 2009, which had expired. The application was heard by the Federal Circuit Court of Australia. The UWU sought to extend the agreement by six months, arguing that the economic climate and the COVID-19 pandemic had caused significant disruptions to the university's operations, making it difficult for the parties to negotiate a new agreement. Arc @ UNSW Limited opposed the application, contending that the UWU had not demonstrated any exceptional circumstances warranting an extension beyond the default period. The court had to determine whether the UWU had established sufficient grounds to justify an extension of the default period and whether the application met the criteria set out in the Fair Work Act 2009.

The court considered the evidence presented by both parties and assessed whether the UWU had demonstrated that the economic climate and the pandemic had created exceptional circumstances that warranted an extension of the agreement. The court noted that the pandemic had indeed caused significant disruptions, but it also observed that the UWU had not provided sufficient evidence to show that these disruptions had prevented the parties from reaching an agreement. The court emphasised that the burden was on the UWU to demonstrate exceptional circumstances that went beyond the ordinary difficulties encountered in collective bargaining. After carefully weighing the evidence, the court concluded that the UWU had not met this burden and dismissed the application.

The court's reasoning was grounded in the statutory framework provided by the Fair Work Act 2009, which requires a showing of exceptional circumstances for an extension of the default period. The court held that the UWU's application did not meet the stringent criteria necessary to justify an extension. The court's decision was based on the lack of specific evidence linking the disruptions caused by the pandemic directly to the inability of the parties to negotiate a new agreement. The court's ruling affirmed that the default period for the collective agreement would not be extended, and the agreement would remain in effect as per the terms of the Act. The final orders of the court dismissed the UWU's application and upheld the default period for the collective agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established