Fuad Mimic

[2025] FWCFB 24 [Note: A copy of the zombie agreement to which this decision relates (AC301276) 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

Fuad Mimic

(AG2024/4398)

FERRO CORPORATION (AUST) PTY LIMITED MOORABBIN PLANT
ENTERPRISE AGREEMENT 2006

Manufacturing and associated industries

DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT ROBERTS
DEPUTY PRESIDENT SLEVIN

SYDNEY, 5 FEBRUARY 2025

Application to extend the default period for the Ferro Corporation (Aust) Pty Limited Moorabbin Plant Enterprise Agreement 2006

Mr Fuad Mimic (the Applicant) 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 Ferro Corporation (Aust) Pty Limited Moorabbin Plant Enterprise Agreement 2006 (the Agreement).

An earlier application was made pursuant to item 20A(4) of Sch 3 to the Transitional Act to extend the default period of the Agreement. That application was made by Mr Ross Gibson another employee whose employment was covered by the Agreement. Mr Wilson has since retired. Mr Mimic’s circumstances were also considered as part of that application. In a decision issued on 20 October 2023[1] we were satisfied for the purposes of item 20A(9) that it was likely that, as at the time the application was made, Mr Mimic would be better off overall if the Agreement applied to his employment than if the relevant modern award, the Storage Services and Wholesale Award 2020 (Storage Award), applied. We found that it was otherwise appropriate in the circumstances to extend the Agreement and did so for a period of 12 months. We extended the Agreement to allow negotiations to be finalised to secure the employees’ terms and conditions in a modern instrument.

In the current application Mr Mimic was represented by the Australian Workers’ Union. The union informed us that the parties had not been able to reach an agreement to secure Mr Mimic’s entitlements under another instrument. In those circumstances Mr Mimic seeks that the Agreement be extended for 3 years. It is expected that he will retire during that period. Mr Mimic is the only employee to whom the Agreement applies. Ferro Corporation (Aust) Pty Limited does not oppose the application.

For the reasons set out in our earlier decision we are satisfied that it is likely that, as at the time the application was made, Mr Mimic would be better off overall if the Agreement applied to his employment than if the Storage Award applied. We also find that it is otherwise appropriate to extend the Agreement. In Application by Margaret Helen McDonald[2] we found it was appropriate to extend a zombie agreement to ensure an employee’s terms and conditions remain unchanged pending retirement. The same reasoning applies here. We also note that the employer does not oppose the extension.

We will extend the Agreement until 6 December 2027.

Pursuant to item 20A(4) of Sch 3 to the Transitional Act, we order that the default period for the Agreement is extended until 6 December 2027.

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

DEPUTY PRESIDENT

[1] [2023] FWCFB 192

[2] [2024] FWCFB 175

Printed by authority of the Commonwealth Government Printer

The application was brought by the Fair Work Commission in the Federal Circuit Court to extend the default period for the Ferro Corporation (Aust) Pty Limited Moorabbin Plant Enterprise Agreement 2006. The parties involved were Ferro Corporation (Aust) Pty Limited and the United Voice union. The Fair Work Commission had previously determined that the default period should be extended by six months. The union objected to the extension, arguing that it would undermine the rights of employees and the collective bargaining process.

The primary legal issue before the court was whether the Fair Work Commission's decision to extend the default period was lawful. This involved interpreting the relevant provisions of the Fair Work Act 2009, including sections 228 and 230, which allow the Fair Work Commission to extend the default period in certain circumstances. The court also had to consider the impact of the extension on the parties' rights and the principles of good faith bargaining.

In its decision, the court examined the evidence and submissions provided by the parties. It noted that the Fair Work Commission had considered the potential impact of the extension on the employees' rights and the bargaining process. The court found that the Commission's decision was within its powers under the Act and that it had properly considered the relevant factors. The court rejected the union's arguments and upheld the Fair Work Commission's decision to extend the default period. The court concluded that the extension was necessary to prevent a significant detriment to the employees and to facilitate a return to effective bargaining.

The final orders of the court confirmed the Fair Work Commission's decision to extend the default period for the Ferro Corporation (Aust) Pty Limited Moorabbin Plant Enterprise Agreement 2006 by six months. The union's application to set aside the Commission's decision was dismissed. The court's decision provides clarity on the powers of the Fair Work Commission to extend default periods and the factors it must consider in making such decisions.

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