B.G. & D.M. Tonge Pty Ltd

[2024] FWCFB 224

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

B.G. & D.M. Tonge Pty Ltd

(AG2023/4904)

B.G. & D.M. TONGE PTY LTD EMPLOYEE COLLECTIVE AGREEMENT

Fast food industry

DEPUTY PRESIDENT WRIGHT

DEPUTY PRESIDENT O’KEEFFE

COMMISSIONER LIM

SYDNEY, 22 APRIL 2024

Application to extend the default period for the B.G. & D.M. Tonge Pty Ltd Employee Collective Agreement

Introduction

Pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, B.G. & D.M. Tonge Pty Ltd has applied to extend the default period for the B.G. & D.M. Tonge Pty Ltd Employee Collective Agreement (the Agreement).

The Agreement would have terminated in accordance with subitem 20A(1) on 6 December 2023 save that an application under subitem 20A(4) to extend the Agreement has been made. The Agreement continued pending our decision in that application.

Subitem 20A(6)(b), allows the Commission to extend on the ground that it is reasonable in the circumstances to do so. The circumstances here are that since the application was made an enterprise agreement has been approved by the Commission under the Fair Work Act 2009 which covers the same, or substantially the same, group of employees as are covered by the Agreement.[1]

The replacement agreement commenced operation on 12 April 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 12 April 2024.

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

DEPUTY PRESIDENT

[1] [2024] FWCA 1231.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, B.G. & D.M. Tonge Pty Ltd, applied to the Fair Work Commission to extend the default period of the B.G. & D.M. Tonge Pty Ltd Employee Collective Agreement. The application was made under subitem 20A(4) of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The Agreement was due to terminate on 6 December 2023, but the applicant sought an extension to allow it to continue until the commencement of a new enterprise agreement that would replace it. This new agreement was approved by the Commission and commenced on 12 April 2024. The primary issue for the Commission was whether it was reasonable to extend the default period of the Agreement under the circumstances. Specifically, the Commission needed to determine if the extension was justified given that a new enterprise agreement had been approved to cover the same or substantially the same group of employees.

The Fair Work Commission considered the statutory criteria and the circumstances surrounding the application. The Commission noted that an enterprise agreement had been approved by the Commission under the Fair Work Act 2009, which covered the same or substantially the same group of employees as the Agreement. The purpose of the extension was to ensure that the Agreement continued to apply until the new enterprise agreement commenced operation. The Commission found that it was reasonable to extend the default period of the Agreement to allow for a smooth transition to the new enterprise agreement. This extension would provide necessary continuity in employee terms and conditions until the new agreement took effect.

The Commission granted the application and extended the default period of the B.G. & D.M. Tonge Pty Ltd Employee Collective Agreement until 7 days after the approval decision of the new replacement agreement on 12 April 2024. This decision ensures that the Agreement remained in effect until the new enterprise agreement came into operation, thereby avoiding any gap in employee coverage. The Agreement was subsequently published on the Fair Work Commission’s website as required by subitem 20A(10A)(c) of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established