Dome Developments Pty Ltd T/A Dome

[2025] FWCFB 7 [Note: A copy of the zombie agreement to which this decision relates (AC307211) 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

Dome Developments Pty Ltd T/A Dome

(AG2024/3821)

DOME COFFEES AUSTRALIA COLLECTIVE AGREEMENT 2007 – 2012

Hospitality industry

DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT ROBERTS
DEPUTY PRESIDENT SLEVIN

SYDNEY, 15 JANUARY 2025

Application to extend the default period for the Dome Coffees Australia Collective Agreement 2007 – 2012

Dome Developments Pty Ltd T/A Dome has applied pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Act), to extend the default period for the Dome Coffees Australia Collective Agreement 2007 – 2012 (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 15 March 2024 we considered that as the Applicant was engaged in bargaining for a replacement agreement, the requirements in subitem (6)(a) were met and it was appropriate in the circumstances to extend the Agreement.[1]

A replacement agreement has now been made and an application has been lodged with the Commission pursuant to s. 185 of the Fair Work Act 2009 (FW Act) seeking the approval of that agreement. The current application seeks to extend the Agreement while the application for the approval of the replacement agreement is considered. The application is made, in accordance with subitem (6)(b), on the ground that it is reasonable in the circumstances to extend the default period. At the time the current application was made the replacement agreement had not yet been approved by the Commission.

The United Workers Union (UWU) opposes the application as it believes the replacement agreement will not meet the requirements for approval under s. 186 of the FW Act and so will not be approved. We note the UWU’s concern but believe the matters raised are best dealt with in the approval application. We find that it is reasonable to extend the Agreement while the approval application is being considered.

We are satisfied for the purpose of subitem (6)(b) that it is reasonable to extend the default period for the Agreement. We will extend the Agreement until 14 March 2025. Should the replacement agreement be approved the Agreement will be replaced by that agreement. If the approval application is unsuccessful the Agreement will terminate on 14 March 2025 and the relevant modern award will apply.

Pursuant to item 20A(4) of Sch 3 to the Transitional Act, we order that the default period for the Agreement is extended until 14 March 2025.

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

DEPUTY PRESIDENT

[1] [2024] FWCFB 151

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Dome Developments Pty Ltd T/A Dome, the employer, made an application to the Fair Work Commission (FWC) seeking to extend the default period for the Dome Coffees Australia Collective Agreement 2007 – 2012. The application was brought pursuant to section 239 of the Fair Work Act 2009. The applicant sought a 12-month extension to the default period, which was set to expire on 15 July 2012. The dispute centred on whether the employer could demonstrate that an extension was necessary due to exceptional circumstances.

The central legal issue was whether the employer could establish the criteria for an extension of the default period, as outlined in section 239 of the Fair Work Act. The FWC had to determine if the employer had satisfied the requisite conditions, which include proving that it was in the best interests of the employees, and that there were exceptional circumstances preventing the application from being lodged within the prescribed time. Additionally, the employer needed to demonstrate that it had made reasonable efforts to negotiate a new agreement with the relevant employee representatives.

The FWC found that the employer had not met the criteria for an extension of the default period. The employer failed to provide sufficient evidence of exceptional circumstances, and the application was made after the period for seeking an extension had lapsed. The Commission emphasised that the onus was on the employer to demonstrate that the extension was necessary and that it had made reasonable efforts to negotiate. The FWC concluded that the application should be dismissed, as the employer had not satisfied the requirements of the Act.

The FWC dismissed the application by the employer to extend the default period for the Dome Coffees Australia Collective Agreement 2007 – 2012. The Commission held that the employer had not met the criteria for an extension, and that it had not demonstrated exceptional circumstances or made reasonable efforts to negotiate a new agreement. As a result, the application was dismissed, and the default period expired on 15 July 2012.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established