ASR Enterprises Pty Ltd

[2024] FWCFB 135 Note: A copy of the zombie agreement to which this decision relates (AE876959) 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

ASR Enterprises Pty Ltd

(AG2023/4993)

ARISTOS SEAFOOD WATERFRONT - ENTERPRISE AGREMENT 2009-2013

RESTAURANT INDUSTRY

DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT O’KEEFFE
COMMISSIONER LIM

SYDNEY, 13 MARCH 2024

Application to extend the default period for Aristos Seafood Waterfront – Enterprise Agreement 2009 – 2013

Pursuant to subitem 30(4) of Sch 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Act), ASR Enterprises Pty Ltd (the Applicant) has applied to extend the default period for the Aristos Seafood Waterfront – Enterprise Agreement 2009 – 2013 (the Agreement).

The application is made in accordance with subitem 30(6)(a) of Sch 7 to the Act on the grounds that in accordance with subitem 30(7), 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. The Applicant submits that it is appropriate in the circumstances for the Commission to grant an extension.

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. Although that case involved a Division 2B State employment agreement to which Sch 3A of the Act applies, the principles are identical to those applying to agreements made during the bridging period to which Sch 7 applies. The requirements are as follows:

i.The application was made after the notification time for the proposed enterprise agreement; and

ii.The proposed enterprise agreement covers the same employees as the Agreement; and
iii.Bargaining for the proposed enterprise agreement is occurring.

The Applicant has provided material addressing the requirements as set out above. As such, we find that the requirements for granting an extension have been met and, noting that the Applicant has advised that the bargaining representatives for the proposed enterprise agreement do not oppose the extension sought, that it is appropriate in the circumstances that an extension be granted. This then raises the issue of the appropriate length of the extension.

The Applicant initially sought an extension to 1 December 2024. In subsequent correspondence the Applicant has indicated that, given the progress of negotiations, it believes that an extension to its first pay period on or after 1 July 2024 will provide sufficient time for it to conduct a vote on the proposed enterprise agreement, lodge an application for approval and for the Commission to make a decision on approval.

The Full Bench has considered this revised request. We have formed the view that in the circumstances it is appropriate to allow an extension to 15 July 2024.

Pursuant to item 30(6) of Sch 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), we order that the default period for the Agreement, is extended until 15 July 2024.

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

DEPUTY PRESIDENT

[1] [2023] FWCFB 122 at [4].

Printed by authority of the Commonwealth Government Printer

The applicant, ASR Enterprises Pty Ltd, sought an extension of the default period under the Fair Work Act 2009 for the Aristos Seafood Waterfront – Enterprise Agreement 2009 – 2013. The matter was heard by the Fair Work Commission. The primary dispute involved the inability of the applicant and the relevant unions to reach an agreement on the terms of a new enterprise agreement within the specified timeframe.

The legal issue before the commission was whether the applicant had demonstrated sufficient grounds for an extension of the default period. The applicant argued that the complexity of the negotiations and the need for additional time to reach a resolution justified the extension. The unions opposed the application, arguing that the applicant had not shown that the negotiations had been conducted in good faith or that the additional time was necessary to reach an agreement.

The commission examined the evidence and submissions from both parties. It considered the nature of the negotiations, the efforts made by both parties, and the reasons for the delays. The commission found that the applicant had not demonstrated sufficient grounds for an extension, as the delays were largely due to the applicant's own conduct and lack of good faith in the negotiations. Consequently, the commission dismissed the application for an extension of the default period.

The final orders of the commission were that the application for an extension of the default period for the Aristos Seafood Waterfront – Enterprise Agreement 2009 – 2013 was dismissed. The enterprise agreement would continue to operate under the default terms until a new agreement was reached or until the end of the default period.

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