DGH Engineering Pty Ltd T/A DGH Engineering

[2024] FWCFB 220 [Note: A copy of the zombie agreement to which this decision relates (AE873401) 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 instrument

DGH Engineering Pty Ltd T/A DGH Engineering

(AG2023/4402)

DGH ENGINEERING PTY LTD ENTERPRISE AGREEMENT 2010
Manufacturing and associated industries
DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT SLEVIN DEPUTY PRESIDENT GRAYSON	SYDNEY, 22 APRIL 2024

Application to extend the default period for the DGH Engineering Pty Ltd Enterprise Agreement 2010

DGH Engineering Pty Ltd T/A DGH Engineering has applied pursuant subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act), to extend the DGH Engineering Pty Ltd Enterprise Agreement 2010 (the Agreement). However, the Agreement is a single-enterprise agreement made during the bridging period. Sch 7 applies to enterprise agreements made during the bridging period.

We will consider the application as if it was made under made under subitem 30(4) of Sch 7. Under subitem 30(1) the Agreement was to terminate on 6 December 2023.

The application is made 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 has commenced bargaining for a replacement agreement and we consider that an extension until 6 June 2024 is sufficient time for a replacement agreement to be made and approved.

Pursuant to item 30(4) of Sch 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), we order that the default period for the Agreement is extended until 6 June 2024.

The Agreement is published, in accordance with subitem 30(9A)(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

DGH Engineering Pty Ltd, trading as DGH Engineering, applied to the Fair Work Commission for an extension of the default period for its Enterprise Agreement 2010. The Agreement was set to expire on 6 December 2023, and DGH Engineering sought an extension on the basis that it was engaged in bargaining for a replacement agreement. The application was lodged under subitem 20A(4) of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, but because the Agreement was made during the bridging period, the application was considered under subitem 30(4) of Schedule 7 of the same Act. The Commission was required to determine whether the application met the criteria for an extension, specifically whether bargaining for a replacement agreement was underway and whether it was appropriate to extend the default period.

The Full Bench examined the requirements for extending the default period, referencing the decision in ISS Health Services Pty Ltd. The Commission found that DGH Engineering had indeed commenced bargaining for a replacement agreement and that it was appropriate to grant an extension. Given the circumstances, the Commission determined that an extension until 6 June 2024 would provide sufficient time for the negotiation and approval of a new agreement. The decision was made in accordance with the statutory requirements and the Commission’s previous jurisprudence.

In its decision, the Fair Work Commission granted the application for an extension of the default period for the DGH Engineering Pty Ltd Enterprise Agreement 2010. The default period was extended to 6 June 2024, as it was deemed sufficient for the completion of bargaining and the approval of a new agreement. The Agreement was subsequently published on the Fair Work Commission’s website in compliance with the relevant legislative provisions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established