Hermes Australia Pty Ltd T/A Hermes

[2024] FWCFB 375 [Note: A copy of the zombie agreement to which this decision relates (AC305797) 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

Hermes Australia Pty Ltd T/A Hermes

(AG2024/1988)

HERMES AUSTRALIA - WORKPLACE AGREEMENT

Retail industry

DEPUTY PRESDIENT WRIGHT

DEPUTY PRESIDENT ROBERTS

DEPUTY PRESIDENT SLEVIN

SYDNEY, 17 SEPTEMBER 2024

Application to extend the default period for the Hermes Australia - Workplace Agreement 2007

Hermes Australia Pty Ltd T/A Hermes (the Applicant) has applied to extend the default period for the Hermes Australia - Workplace Agreement 2007 (Agreement) pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth).

An earlier application was made to extend the default period of the Agreement. In a decision issued on 28 Feburary 2024 the Full Bench considered that the requirements in subitem 20A(6)(a) were met and it was appropriate in the circumstances to extend the Agreement. The Full Bench ordered that the default period for the Agreement be extended until 6 June 2024 to allow time for a replacement agreement to be made and approved.[1]

The current application, lodged on 4 June 2024, seeks to extend the agreement until 6 September 2024, or the date which is 7 days after the Applicant’s new enterprise agreement is approved by the Fair Work Commission. The application was made, in accordance with subitem 20A(6)(b), on the ground that it is reasonable in the circumstances to extend the default period where an enterprise agreement has been made that covers the same employees covered by the Agreement and an application has been made to have the replacement agreement approved by the Commission under the Fair Work Act 2009. An application to approve the replacement agreement was lodged with the Commission on 6 June 2024. At the time the current application was made the replacement agreement had not yet been approved by the Commission.

The Commission has since approved the replacement agreement.[2] The replacement agreement commenced operation on 27 August 2024.

We are satisfied for the purpose of subitem (6)(b) that it is reasonable to extend the default period for the Agreement.

Pursuant to item 20A(4) of Sch 3 to the Transitional Act, we order that the default period for the Agreement is extended until 27 August 2024

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

DEPUTY PRESIDENT

[1] [2024] FWCFB 113

[2] [2024] FWCA 1807.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Hermes Australia Pty Ltd, trading as Hermes, the Fair Work Commission (FWC) considered an application to extend the default period of an existing workplace agreement. The applicant sought to prolong the duration of the Hermes Australia - Workplace Agreement 2007, which was previously extended until 6 June 2024. The current application aimed to further extend the agreement until 6 September 2024, or until seven days after the approval of a new enterprise agreement by the FWC. The basis for the application was the reasonable expectation that the new agreement would cover the same employees and that an application for its approval had been submitted to the FWC. The Commission needed to determine whether it was reasonable under the circumstances to grant this extension.

The legal issues before the Commission were whether the requirements of subitem 20A(6)(b) of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 were met and if it was appropriate to extend the default period of the agreement. Subitem 20A(6)(b) allows for an extension if an enterprise agreement has been made covering the same employees and an application has been made to have the replacement agreement approved by the FWC. Given that the replacement agreement had not yet been approved at the time of the application but was subsequently approved and commenced on 27 August 2024, the Commission assessed the reasonableness of extending the default period.

The Commission found that it was reasonable to extend the default period for the Agreement until 27 August 2024. The Deputy Presidents were satisfied that the new agreement would cover the same employees and that the approval process was underway. They considered the circumstances justified the extension to allow for the smooth transition to the new agreement. Consequently, the FWC ordered the extension of the default period for the Agreement until 27 August 2024. The Agreement has been published on the FWC website as required by the legislation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established