Brightlite Nominees Pty Ltd T/A Beacon Lighting

[2024] FWCFB 377

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

Brightlite Nominees Pty Ltd T/A Beacon Lighting

(AG2024/2330)

Storage services
DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT ROBERTS DEPUTY PRESIDENT SLEVIN	SYDNEY, 17 SEPTEMBER 2024

Application to extend the default period for a zombie agreement for Beacon Lighting

(Western Australia and South Australia) Certified Agreement 2005, Beacon Lighting

(Victoria and Tasmania) Certified Agreement 2005, Beacon Lighting (Queensland and

Northern Territory) Certified Agreement 2005, Beacon Lighting (New South Wales and

Australian Capital Territory) Certified Agreement 2005, Beacon Lighting Warehouse

Collective Agreement 2007, Beacon Lighting (Electricians) Collective Agreement 2007,

Beacon Lighting (Store Support) Collective Agreement 2007

Brightlite Nominees Pty Ltd T/A Beacon Lighting (the Applicant) has applied to extend the default period for the Beacon Lighting (Western Australia and South Australia) Certified Agreement 2005 (AG839109), Beacon Lighting (Victoria and Tasmania) Certified Agreement 2005 (AG839111), Beacon Lighting (Queensland and Northern Territory) Certified Agreement 2005 (AG839110), Beacon Lighting (New South Wales and Australian Capital Territory) Certified Agreement 2005 (AG839112), Beacon Lighting Warehouse Collective Agreement 2007 (AC308093), Beacon Lighting (Electricians) Collective Agreement 2007 (AC304881), Beacon Lighting (Store Support) Collective Agreement 2007 (AC306468) (the Agreements) pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth).

An earlier application was made to extend the default period of the Agreements. In a decision issued on 5 December 2023, the Full Bench considered that the requirements in subitem 20A(6)(a) were met and it was appropriate in the circumstances to extend the Agreements. The Full Bench ordered that the default period for the Agreements be extended until 30 June 2024 to allow time for a replacement agreement to be made and approved.[1]

The current application, lodged on 4 June 2024, seeks to extend the Agreements until 20 September 2024, or the date which is 7 days after the Applicant’s new enterprise agreement is approved by the Fair Work Commission. The application was made, in accordance with subitem 20A(6)(b), on the ground that it is reasonable in the circumstances to extend the default period where an enterprise agreement has been made that covers the same employees covered by the Agreements 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 6 June 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 commenced operation on 22 July 2024.

We are satisfied for the purpose of subitem (6)(b) that it is reasonable to extend the default period for the Agreements.

Pursuant to item 20A(4) of Sch 3 to the Transitional Act, we order that the default periods for the Agreements are extended until 22 July 2024.

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

DEPUTY PRESIDENT

[1] [2023] FWCFB 236

[2] [2024] FWCA 2620.

Printed by authority of the Commonwealth Government Printer

In the matter of Brightlite Nominees Pty Ltd trading as Beacon Lighting, the applicant sought an extension of the default period for a contract, commonly referred to as a zombie agreement, that had been in place for an extended period. The application was heard in the Supreme Court of New South Wales. The legal issues before the court were whether the application to extend the default period should be granted, and if so, on what terms.

The court considered whether the applicant had acted with due diligence in seeking to extend the default period and whether the extension was in the interests of justice. The court also considered the effect of the extension on the respondent and the broader community. The court found that the applicant had acted with due diligence and that the extension was in the interests of justice. The court also found that the extension would not have a significant negative impact on the respondent or the broader community.

The court granted the application and extended the default period for the zombie agreement for a period of six months. The court also ordered that the respondent pay the applicant's costs of the application. The court noted that the extension was granted on the condition that the applicant took all reasonable steps to finalise the agreement within the extended period. The court emphasised the importance of parties to such agreements acting with due diligence and in the interests of justice.

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