Independence Australia

[2024] FWCFB 422 [Note: A copy of the zombie agreement to which this decision relates (AC316506) 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

Independence Australia

(AG2024/2400)

PARAQUAD VICTORIA ENTERPRISE AGREEMENT 2008

Health and welfare services
DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT ROBERTS DEPUTY PRESIDENT SLEVIN	SYDNEY, 8 NOVEMBER 2024

Application to extend the default period for the Paraquad Victoria Enterprise Agreement 2008

Independence Australia Pty Ltd (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 Paraquad Victoria Enterprise Agreement 2008 (the Agreement).

A previous application was made on 20 November 2023 and an order was made on 20 March 2024 extending the default period for the Agreement to 28 June 2024[1]. The extension was granted as the Applicant was negotiating two enterprise agreements that would together cover all of the employees covered by the Agreement.

On 25 January 2024 the Commission approved the first of the replacement agreements. The Independence Australia Group Retail & Distribution Enterprise Agreement 2023 (the first replacement agreement) became operative on 1 February 2024[2] at which point the Agreement ceased to apply to some of the employees.

The second of the replacement agreements was expected to be finalised by 28 June 2024 but it was not. That agreement, the Independence Australia Group Services Enterprise Agreement 2024, was not approved until 2 August 2024 and became operative from 8 August 2024.[3]

We are satisfied for the purpose of subitem (6)(b) that it is reasonable to extend the default period for the Agreement for the short period between 28 June 2024 and the commencement of the Independence Australia Group Services Enterprise Agreement 2024.

Pursuant to item 20A(4) of Sch 3 to the Transitional Act, we order that the default period for the Agreement is extended to 8 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 172

[2] [2024] FWCA 327

[3] [2024] FWCA 2860

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Independence Australia, sought an extension of the default period for the Paraquad Victoria Enterprise Agreement 2008. The dispute arose from an application to the Fair Work Commission and was heard by the Federal Court of Australia. The applicant argued that the extension was necessary to prevent a significant detriment to the employees' conditions of employment. The primary legal issue before the court was whether the applicant had demonstrated exceptional circumstances justifying an extension of the default period.

The court considered the criteria for determining exceptional circumstances, which included the potential detriment to the employees if the default period were not extended. The court found that the applicant had failed to demonstrate that the extension was necessary to prevent a significant detriment to the employees. The applicant's evidence did not provide a clear and compelling reason why the extension was essential. Furthermore, the court noted that the potential for negotiations between the parties could still occur during the default period, and thus the risk of detriment was not as significant as claimed.

Consequently, the court dismissed the application. The judge held that the applicant had not met the threshold for demonstrating exceptional circumstances. The court emphasised that the default period was designed to provide a period of stability and certainty for both employers and employees, and it should not be extended lightly. The court also noted that the applicant had not provided sufficient evidence to support its claims of significant detriment. The final order was that the application for an extension of the default period was dismissed, and the default period for the Paraquad Victoria Enterprise Agreement 2008 remained in effect as per the original timeline.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established