Fresh For Life Pty Ltd T/A Oporto

[2024] FWCFB 167 [Note: A copy of the zombie agreement to which this decision relates (AG836132) 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

Fresh For Life Pty Ltd T/A Oporto

(AG2023/4818)

FRESH FOR LIFE PTY LTD – CERTIFIED AGREEMENT 2004-2007

Fast food industry
DEPUTY PRESIDENT SLEVIN DEPUTY PRESIDENT GRAYSON COMMISSIONER THORNTON	SYDNEY, 19 MARCH 2024

Application to extend the default period for Fresh for Life Pty Ltd – Certified Agreement 2004-2007

Pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Act), Fresh For Life Pty Ltd T/A Oporto (Applicant) has applied to extend the default period for the Fresh for Life Pty Ltd – Certified Agreement 2004-2007 (the Agreement).

The application is made in accordance with subitem 20A(6)(a) on the ground that bargaining is occurring for a proposed enterprise agreement that will cover the same or substantially the same group of employees as covered by the existing 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 Service 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.

The Notice of Employee Representational Rights was issued on 1 December 2023. An information session was held with employees on 14 December 2023.

The applicant contends in its application that an extension to 1 December 2024 would allow for the finalisation of an agreement. The time suggested in the application to extend the Agreement for a further 12 months is excessive. We do not consider, taking into account the steps taken in the bargaining to date and the size of the workforce, that a new agreement will take the 12 months sought by the Applicant.

The Applicant has subsequently communicated to indicate that a shorter extension of the Agreement is likely to be sufficient.

In considering whether to extend the agreement and the length of the extension to be granted, we have also taken into account that some conditions in the agreement are less beneficial than the Fast Food Industry Award 2020, including the payment of ‘loaded’ hourly rates, which exclude weekend and public holiday penalty rates, uniform allowances and annual leave loading.

We have balanced that consideration with the information and submissions filed by the Applicant to the effect that bargaining has been commenced and progress has been made in the bargaining. 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) of the Act, on the Fair Work Commission website.

DEPUTY PRESIDENT

[1] [2023] FWCFB 122 at [4].

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Fresh For Life Pty Ltd, trading as Oporto, applied to the Fair Work Commission to extend the default period for the Fresh for Life Pty Ltd – Certified Agreement 2004-2007. The application was made under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and sought an extension to allow for the finalisation of a replacement enterprise agreement. Fresh For Life argued that the extension was necessary as bargaining was occurring for a proposed enterprise agreement that would cover the same group of employees as the existing agreement. The application was made after the notification time for the proposed enterprise agreement. The Full Bench considered whether the requirements for extending the default period were met and whether it was appropriate to do so.

The legal issues before the Full Bench included whether the requirements for extending the default period were satisfied, specifically under subitem 20A(6)(a) of the Act, and whether the proposed length of the extension was appropriate. The Full Bench referred to its previous decision in ISS Health Service Pty Ltd, which outlined the requirements for extending the default period where bargaining for a replacement agreement was underway. The Bench examined the material provided by Fresh For Life, including the steps taken in the bargaining process and the progress made, to determine if the requirements were met. The Bench also considered the benefits and drawbacks of the existing agreement compared to the Fast Food Industry Award 2020.

The Full Bench found that the requirements for extending the default period were met and that it was appropriate to do so. Fresh For Life had commenced bargaining for a replacement agreement, as evidenced by the Notice of Employee Representational Rights issued on 1 December 2023 and the information session held with employees on 14 December 2023. While Fresh For Life initially sought an extension until 1 December 2024, the Bench noted that a shorter extension was likely to be sufficient. Taking into account the progress made in the bargaining and the size of the workforce, the Bench determined that an extension until 6 June 2024 would be adequate. The Bench also balanced the less beneficial conditions in the existing agreement, such as the exclusion of weekend and public holiday penalty rates, against the progress in bargaining.

Pursuant to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, the Full Bench ordered that the default period for the Fresh for Life Pty Ltd – Certified Agreement 2004-2007 be extended until 6 June 2024. The Agreement was subsequently published on the Fair Work Commission website in accordance with the Act. The Bench's decision balanced the need for an extension to allow for the finalisation of a replacement agreement with the progress made in bargaining and the less beneficial conditions of the existing agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established