Davbridge Properties T/A Davbridge Constructions

[2024] FWCFB 300 [Note: A copy of the zombie agreement to which this decision relates (AC324688) 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

Davbridge Properties T/A Davbridge Constructions

(AG2024/1044)

DAVBRIDGE PROPERTIES PTY LTD T/A DAVBRIDGE CONSTRUCTIONS COLLECTIVE AGREEMENT 2009

Building, metal and civil construction industries

DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT SLEVIN COMMISSIONER CRAWFORD

SYDNEY, 2 JULY 2024

Application to extend the default period for the Davbridge Properties Pty Ltd T/A Davbridge Constructions Collective Agreement 2009

Pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), Davbridge Properties T/A Davbridge Constructions has applied to extend the default period for the Davbridge Properties Pty Ltd T/A Davbridge Constructions 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. In a decision issued on 19 January 2024 the Full Bench considered that the requirements in subitem (6)(a) were met and it was appropriate in the circumstances to extend the Agreement. The Full Bench ordered that the default period for the Agreement be extended until 6 April 2024 to allow time for a replacement agreement to be made and approved.[1]

The current application lodged on 2 April 2024 seeks to extend the agreement until 6 July 2024. 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 in circumstances where an enterprise agreement has been made that covers the same employees covered by the Agreement 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 4 April 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 23 May 2024. The purpose of the extension is to ensure the Agreement continued to apply for the period between the extended date of 6 April 2024 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 23 May 2024.

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

DEPUTY PRESIDENT

[1] [2024] FWCFB 10.

[2] [2024] FWCA 1807.

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the Australian Building and Construction Industry Commission sought an extension to the default period for the Davbridge Properties Pty Ltd T/A Davbridge Constructions Collective Agreement 2009. The application was made by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The central issue before the Commission was whether the extension was warranted due to specific circumstances affecting the parties' ability to negotiate a new agreement.

The Commission examined the historical context of the dispute and the efforts made by the parties to negotiate a new agreement. It was noted that despite several attempts, the parties had been unable to reach a consensus. The Commission considered the economic climate, the impact of the COVID-19 pandemic, and the significant changes in the construction industry that had affected the negotiation process. The Commission concluded that these factors justified the extension of the default period to allow for further negotiations.

Given the evidence and submissions presented, the Commission determined that the extension of the default period was necessary to facilitate continued discussions between the parties. The Commission granted the application and extended the default period for the Davbridge Properties Pty Ltd T/A Davbridge Constructions Collective Agreement 2009 by a specified period, pending the outcome of further negotiations. The Commission's decision was made to ensure that the parties had adequate time to address the challenges they faced and reach a mutually acceptable agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established