Glen Grove Orchard Pty Ltd

[2024] FWCFB 162 Note: A copy of the zombie agreement to which this decision relates (AG540003) is available on our website.]

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 3A, Item 206A(4) - Application to extend default period for Division 2B State employment agreements

Glen Grove Orchard Pty Ltd

(AG2023/4965)

GLEN GROVE ORCHARD PTY LTD CERTIFIED AGREEMENT
Agricultural industry
DEPUTY PRESIDENT ROBERTS COMMISSIONER CRAWFORD COMMISSIONER PERICA	SYDNEY, 18 MARCH 2024

Application to extend the default period for the Glen Grove Orchard Pty Ltd Certified Agreement

Glen Grove Orchard Pty Ltd applies pursuant to subitem 26A(4) of Sch 3A to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), to extend the default period for the Glen Grove Orchard Pty Ltd Certified Agreement (the Agreement).

The application is made in accordance with subitem 26A(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 26A(6)(a) of Sch 3A 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 26A(10A)(c) of Sch 3A, 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

Glen Grove Orchard Pty Ltd applied to the Fair Work Commission for an extension of the default period for its certified agreement, as permitted under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The application was made in accordance with the Act's provision allowing for such an extension where 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 existing certified agreement. Glen Grove Orchard Pty Ltd had commenced negotiations for a new enterprise agreement, which was made after the notification time for the proposed agreement. The company sought an extension to allow sufficient time for the negotiation and approval of the new agreement.

The legal issue before the Commission was whether the conditions for extending the default period under subitem 26A(6)(a) of Schedule 3A to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 were met, and whether it was appropriate to grant such an extension. The Commission had to assess the material provided by the applicant to determine if the requirements for the extension were satisfied. The Full Bench in ISS Health Services Pty Ltd had previously outlined the criteria that must be met for such an application, including the necessity of bargaining for a replacement agreement.

The Commission found that the requirements for extending the default period were met, and that it was appropriate to do so. The applicant had commenced bargaining for a replacement agreement, and the Commission determined that an extension until 6 June 2024 would provide sufficient time for the negotiation and approval of the new agreement. The Fair Work Commission ordered that the default period for the Glen Grove Orchard Pty Ltd Certified Agreement be extended until 6 June 2024, and the agreement was published on the Fair Work Commission’s website as required by law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established