Boston Asset Pty Ltd T/A Dome Nedlands

[2024] FWCFB 156

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

Boston Asset Pty Ltd T/A Dome Nedlands

(AG2023/4940)

BOSTON ASSET PTY LTD – CERTIFIED AGREEMENT 2002 – 2005

Restaurants industry
DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT ROBERTS DEPUTY PRESIDENT	SYDNEY, 15 MARCH 2024

Application to extend the default period for Boston Asset Pty Ltd - Certified Agreement 2002 - 2005

Boston Asset Pty Ltd T/A Dome Nedlands applies pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), to extend the default period for the Boston Asset Pty Ltd - Certified Agreement 2002 - 2005 (the Agreement).

The application is made in accordance with subitem 20A(6)(a) on the grounds that 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 and that it is appropriate to do so. The application was made after the notification time for the proposed enterprise agreement.

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.

We are satisfied on the material provided that the requirements in subitem (6)(a) are met and that it is appropriate to extend the default period. The Applicant is currently involved in the Commission’s Collaborative Approaches Program. The United Workers Union supports the application. In those circumstances we grant the extension sought.

Pursuant to item 20A(6) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), we order that the default period for the Agreement is extended until 30 September 2024.

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

DEPUTY PRESIDENT

[1] [2023] FWCFB 122.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to extend the default period for a certified agreement between Boston Asset Pty Ltd, trading as Dome Nedlands, and its employees. The application to extend the default period was made under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, specifically referencing Sch 3, Item 20A(4). The applicant, Boston Asset Pty Ltd, sought to extend the default period for the Boston Asset Pty Ltd - Certified Agreement 2002 - 2005, which covers employees within the restaurants industry. The application was filed after the notification period for a proposed enterprise agreement, which aimed to cover the same or substantially similar group of employees. The Commission needed to determine whether the conditions outlined in subitem 20A(6)(a) were met, particularly whether bargaining for the new agreement was ongoing and whether it was appropriate to extend the default period.

The key legal issue before the Commission was whether the conditions for extending the default period for the certified agreement were satisfied. The Commission referenced the case of ISS Health Services Pty Ltd, which outlined the necessary requirements for such an extension. The applicant argued that bargaining was occurring for a proposed enterprise agreement, and it was appropriate to extend the default period. The Commission examined the materials provided and considered the involvement of the applicant in the Commission’s Collaborative Approaches Program, as well as the support from the United Workers Union. The Commission found that the requirements were met and that extending the default period was appropriate, given the circumstances.

The Fair Work Commission granted the application to extend the default period for the Boston Asset Pty Ltd - Certified Agreement 2002 - 2005. The extension was ordered under item 20A(6) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, setting the new default period until 30 September 2024. The agreement was subsequently published on the Fair Work Commission’s website, as mandated by subitem 20A(10A)(c). The decision was made by Deputy President Wright, Deputy President Roberts, and Deputy President, reflecting the agreement among the panel members on the appropriateness of the extension.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established