Bunk (Qld) Pty Ltd T/A Bunk Backpackers

[2024] FWCFB 146

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

Bunk (Qld) Pty Ltd T/A Bunk Backpackers

(AG2023/4988)

BUNK (QLD) PTY LTD – CERTIFIED AGREEMENT 2003-2006

Liquor and Accommodation industry
DEPUTY PRESIDENT SLEVIN COMMISSIONER CRAWFORD COMMISSIONER THORNTON	SYDNEY, 14 MARCH 2024

Application to extend the default period for Bunk (Qld) Pty Ltd Certified Agreement - 2003-2006

Introduction

Pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, Bunk (Qld) Pty Ltd T/A Bunk Backpackers has applied to extend the default period for the Bunk (Qld) Pty Ltd – Certified Agreement 2003-2006 (the Agreement). Under subitem 20A(1) the Agreement was to terminate on 6 December 2023.

The application was made, in accordance with subitem (6)(b), on the ground that it is reasonable in the circumstances to extend the default period where an enterprise agreement has been approved by the Commission under the Fair Work Act 2009 and the replacement agreement covers the same, or substantially the same, group of employees as are covered by the Agreement. At the time this application was made the replacement agreement had not yet been approved by the Commission.

The Commission has since approved the replacement agreement.¹ The replacement agreement commenced operation on 27 February 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 27 February 2024.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Bunk (Qld) Pty Ltd T/A Bunk Backpackers applied to the Fair Work Commission for an extension of the default period for the Bunk (Qld) Pty Ltd – Certified Agreement 2003-2006. The original agreement was set to terminate on 6 December 2023. The application was made under subitem (6)(b) of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, seeking an extension on the basis that it was reasonable to do so given that a replacement agreement covering the same or substantially the same group of employees had been approved by the Commission, even though at the time of the application, the replacement agreement had not yet been approved. Subsequently, the Commission approved the replacement agreement which commenced on 27 February 2024. The application aimed to ensure the original agreement remained in effect until the new agreement took effect.

The Commission needed to determine whether it was reasonable to extend the default period for the Agreement. The key legal issue was whether the conditions specified in subitem (6)(b) were met, specifically whether the replacement agreement covered the same or substantially the same group of employees as the original agreement. Given the replacement agreement had been approved and covered the same group of employees, the Commission found it reasonable to extend the default period to align with the operational start date of the replacement agreement.

The Commission concluded that it was reasonable to extend the default period for the Agreement, and accordingly, ordered the extension until seven days after the approval of the replacement agreement on 27 February 2024. This decision was made to ensure continuity of coverage for the employees during the transition period. The Agreement was published on the Fair Work Commission’s website as required by subitem 20A(10A)(c) of the Transitional Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established