ERG Electrics Pty Ltd T/A Erg Electrics

[2024] FWCFB 80 [Note: A copy of the zombie agreement to which this decision relates (AC327591) 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

ERG Electrics Pty Ltd T/A Erg Electrics

(AG2023/4678)

ERG ELECTRICS PTY LTD COLLECTIVE AGREEMENT 2008 - VARIATION MAY 2009
DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT SLEVIN DEPUTY PRESIDENT GRAYSON	SYDNEY, 15 FEBRUARY 2024

Application to extend the default period for ERG Electrics Pty Ltd Collective Agreement 2008 - Variation May 2009

ERG Electrics Pty Ltd T/A Erg Electrics applies pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), to extend the default period for the ERG Electrics Pty Ltd Collective Agreement 2008 - Variation May 2009 (the Agreement).

The application is made in accordance with subitem 20A(6)(a) 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 20A(6) of Sch 3 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 20A(10A)(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

ERG Electrics Pty Ltd T/A Erg Electrics sought an extension of the default period for their collective agreement under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The applicant argued that negotiations for a new enterprise agreement, which would cover the same or substantially the same group of employees as the existing agreement, were ongoing. The application was lodged after the notification period for the proposed enterprise agreement. The Fair Work Commission, comprising Deputy Presidents Wright, Slevin, and Grayson, reviewed the application.

The legal issues before the Commission were whether the conditions specified in subitem 20A(6)(a) of Schedule 3 to the Fair Work Act were met and if it was appropriate to extend the default period. These conditions require that bargaining for a replacement agreement is occurring and that such an extension is appropriate. The Commission also needed to determine a suitable duration for the extension.

The Commission found that the applicant had demonstrated that bargaining for a replacement agreement was ongoing, fulfilling the requirements of subitem 20A(6)(a). Additionally, the Commission considered that extending the default period until 6 June 2024 would provide sufficient time for the negotiation, agreement, and approval of the new enterprise agreement. The Commission referenced its earlier decision in ISS Health Services Pty Ltd to guide its assessment. Consequently, the Commission ordered the extension of the default period for the ERG Electrics Pty Ltd Collective Agreement 2008 - Variation May 2009 until 6 June 2024, and mandated that the agreement be published on the Fair Work Commission's website.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established