Hermes Australia Pty Ltd T/A Hermes

[2024] FWCFB 113 [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

(AG2023/4923)

HERMES AUSTRALIA - WORKPLACE AGREEMENT

(AC305797)

Retail industry

DEPUTY PRESIDENT SLEVIN

COMMISSIONER LIM
COMMISSIONER THORNTON

SYDNEY, 28 FEBRUARY 2024

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

On 5 December 2023, Hermes Australia Pty Ltd (Applicant) made an application under item 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (TransitionalAct) to extend the ‘default period’ for the Hermes Australia - Workplace Agreement 2007 (Agreement). The application seeks to extend the default period to 6 December 2024.

The application is made in accordance with subitem 20A(6)(a) of the Transitional Act 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 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 (7) are met and that it is appropriate to extend the default period. The Applicant has commenced bargaining for a replacement agreement. The Applicant has sought an extension until 6 December 2024. However, the Applicant has also submitted that if the Commission were to extend the default period of the Agreement for six (6) months, they will endeavour to finalise the new enterprise agreement within this period. We have considered the information and submissions filed by the Applicant in support of that contention and 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 of the Transitional Act, 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’s website.

DEPUTY PRESIDENT

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Hermes Australia Pty Ltd, trading as Hermes, applied to the Fair Work Commission for an extension of the default period for the Hermes Australia - Workplace Agreement 2007. The application was made under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, seeking an extension until 6 December 2024. The application was based on ongoing bargaining for a proposed enterprise agreement that would cover the same group of employees as the existing agreement. The application was made after the notification period for the proposed enterprise agreement had concluded.

The legal issues before the Commission were whether the requirements for extending the default period were met and whether it was appropriate to grant the extension. The Commission considered the information provided by Hermes, which included evidence of ongoing bargaining for a replacement agreement. The Commission also noted Hermes' commitment to finalise the new enterprise agreement within a shorter extension period of six months. The Commission determined that an extension until 6 June 2024 was sufficient to allow for the completion of the bargaining process and approval of a new agreement.

In making its decision, the Commission referred to the requirements outlined in a previous decision, ISS Health Services Pty Ltd. The Commission concluded that the requirements for extending the default period were met and that it was appropriate to grant the extension. The Commission ordered that the default period for the Agreement be extended until 6 June 2024, with the Agreement to be published on the Fair Work Commission's website.

The Commission's order was made under item 20A(6) of Schedule 3 of the Transitional Act. The decision ensures that Hermes has sufficient time to complete the bargaining process and secure approval for a new enterprise agreement, while also allowing for the orderly transition from 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