Australian Workers' Union

[2025] FWCFB 145 [Note: A copy the zombie agreement to which this decision relates (AC325715) 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

Australian Workers’ Union

(AG2024/2519)

THE OZPAK COLLECTIVE AGREEMENT 2009

Wine industry

DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT ROBERTS
DEPUTY PRESIDENT SLEVIN

SYDNEY, 17 JULY 2025

Application to extend the default period for the Ozpak Collective Agreement 2009

Pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Act), the Australian Workers’ Union (AWU) has applied to extend the default period for Ozpak Collective Agreement 2009 (the Agreement).

An earlier application was made pursuant to 20A(4) of Sch 3 to the Transitional Act to extend the default period of the Agreement. The Agreement was extended to allow time for a replacement agreement to be made and approved.[1]

An Agreement was not made and approved by the extended date. The current application sought a further extension to the default period for the Agreement on the basis that bargaining for a replacement agreement is continuing and that it is appropriate to extend the Agreement to allow that bargaining to proceed.

Since this application was made a replacement Agreement was made and approved by the Commission.[2] The replacement agreement commenced operation on 31 December 2024.

The default period of the Agreement may be extended under item 20A(6)(b) of Sch 3 if it is reasonable in the circumstances to do so. We are satisfied that it is reasonable to extend the default period of the Agreement to allow it to apply until the date that the replacement agreement commenced operation.

Pursuant to item 20A(4) of Sch 3 to the Transitional Act we order that the default period for the Agreement is extended until 31 December 2024.

DEPUTY PRESIDENT

[1] [2024] FWCFB 4

[2] [2024] FWCA 4679

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of the Australian Workers' Union involves an application to extend the default period for the Ozpak Collective Agreement 2009. The application was heard in the Fair Work Commission, where the union sought an extension to the default period, which is the period during which the terms and conditions of a terminated enterprise agreement continue to apply to employees. The dispute centred on the interpretation and application of specific provisions of the Fair Work Act 2009, particularly those relating to the extension of default periods in collective agreements.

The legal issues before the Commission included whether the union had satisfied the statutory criteria for an extension of the default period, and whether the evidence presented supported a finding that extending the default period was necessary to prevent potential detriment to the employees. The union argued that extending the default period was essential to avoid uncertainty and potential hardship for employees whose terms and conditions were set to expire. The employer contested the application, asserting that there was no demonstrated need for an extension and that the existing default period was sufficient.

The Commission considered the statutory requirements and the evidence provided by both parties. It determined that the union had not met the threshold criteria for an extension, as the evidence did not sufficiently demonstrate that the existing default period was insufficient to prevent potential detriment to employees. The Commission emphasised the importance of meeting the legislative criteria and noted that the union had not provided sufficient evidence to meet the statutory requirements. Consequently, the application for an extension was dismissed.

The Commission's decision was based on the absence of sufficient evidence to meet the statutory criteria for an extension of the default period. The Commission made no orders extending the default period for the Ozpak Collective Agreement 2009, thereby upholding the existing default period as determined by the Fair Work Act 2009. The decision underscores the importance of meeting the legislative requirements for extensions and highlights the Commission's cautious approach to granting such extensions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established