Isabree Pty Ltd T/A Subway Kunda Park
[2024] FWCFB 211
•15 APRIL 2024
| [2024] FWCFB 211 Note: A copy of the zombie agreement to which this decision relates (AC323758) 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
Isabree Pty Ltd T/A Subway Kunda Park
(AG2023/4990)
NATTAN HOLDINGS PTY LTD EMPLOYER GREENFIELDS AGREEMENT
| Restaurants | |
| DEPUTY PRESIDENT O’KEEFFE | PERTH, 15 APRIL 2024 |
Application to extend the default period for the Nattan Holdings Pty Ltd Employer Greenfields Agreement
Isabree Pty Ltd (the Applicant), trading as Subway Kunda Park, has applied to extend the default period for the Nattan Holdings Pty Ltd Employer Greenfields Agreement (the Agreement) pursuant to item 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act2009 (Cth) (the Transitional Act). The Agreement came into operation on 31 December 2008. It is an agreement-based transitional instrument to which item 20A applies.
Item 20A of Sch 3 to the Transitional Act provides for the automatic sunsetting of agreement-based transitional instruments by the end of the default period on 6 December 2023, subject to the capacity to apply to the Commission for an extension of that period for up to four years in prescribed circumstances. The agreements to which these provisions apply are known as zombie agreements. The main features of item 20A of Sch 3 are described in detail in the Full Bench decision in Suncoast Scaffold Pty Ltd[1] and we rely upon what is said in that decision.
Relevant to this matter, when an application is made under subitem (4) of item 20A of Sch 3 to the Transitional Act the Commission is required under subitem (6) to extend the default period if the Commission is satisfied that subitem (7), (8) or (9) applies and it is otherwise appropriate in the circumstances to do so.
The Applicant seeks an extension on the basis that they "have commenced bargaining for a new agreement that would cover the group of employees currently covered by the zombie agreement. The draft has been prepared by an experienced firm that has similar agreements passed recently and currently before the Commission”, and that it has also “provided a copy of the Notice of Employee Representation Rights (the NERR) and the draft of the Isabree Pty Ltd Enterprise Agreement (the Proposed Agreement).”
The bargaining steps taken by the Applicant follow. On 6 December 2023, employees were provided with the Proposed Agreement, the NERR which was expressed to cover “all employees that are covered by the Fast-Food Industry Award 2020” (the Award), a link to the Award and a copy of the application for an extension of the default period of the Agreement. The Applicant states the Proposed Agreement will cover 15 employees. Between 7 and 12 December 2023, all employees individually confirmed receipt of these documents and were asked if they had any questions.
On 13 December 2023, all employees were provided with a copy of a question and answer document which included a detailed comparison between the Proposed Agreement and the Award. They were also provided with further copies of the Proposed Agreement, the NERR and the Award.
Meetings were scheduled for 30 December 2023, 6 January 2024 and 14 January 2024 for “detailed explanation, follow up and bargaining:” Individual meetings were also offered to any employee unable to attend the group meeting or those with a preference for an individual meeting.
A vote was scheduled for the week beginning 21 January and ending 28 January 2024. This vote was postponed because a decision to approve a similar agreement at another Subway franchise was the subject of an appeal to the Commission. The decision in Shop and Distributive Employees Association v. Allen Family Ltd[2] was handed down by the Full Bench on 6 February 2024 which quashed the decision to approve the similar agreement. The Bench decided to redetermine the application for approval subject to consolidated undertakings by the employer in that case. The Applicant wishes to “consider incorporating those undertakings and amending our proposed agreement in order to resume bargaining with our employees.”
The Full Bench in ISS Health Services Pty Ltd[3] described the three requirements for subitem (7) to apply. The first is the requirement that the application is made at or after the ‘notification time’ for a proposed agreement as defined in s.173(2) of the Fair Work Act 2009 (the FW Act). The second is that the proposed agreement must cover the same or substantially the same group of employees as the zombie agreement. The Full Bench stated that this could be established by comparing the NERR for the proposed agreement to the coverage clause of the zombie agreement. The third is that bargaining for the proposed agreement has commenced.
This application was made on 6 December 2023 which was commenced at the notification time for the Proposed Agreement. The material provided in the application establishes the Proposed Agreement will cover the same or substantially the same group of employees as the Agreement. Bargaining is well advanced and almost at the point of putting the Proposed Agreement to a vote. This has been complicated by the appeal before this Commission referred to earlier. In those circumstances, subitem (7) applies.
As subitem (7) applies, we must also be satisfied that it is “otherwise appropriate to extend the default period’ under sub-item 6(a). Given bargaining for the Proposed Agreement is well advanced and delayed only by circumstances beyond the Applicant’s control, it is appropriate to extend the default period.
As we are satisfied that subitem 6(a) applies, we are required to extend the default period. As the Full Bench observed in Suncoast Scaffolding Pty Ltd,[4] the Commission has a discretion as to the length of the extension, subject to the limitation that the extension cannot be more than four years. The nature of the discretion is such that we are not bound to grant the period of extension sought in the application.[5] The extension sought by the Applicant is to 28 May 2024, but added: “This is a contingency. We will implement the new agreement at the first pay run following approval. I am happy to amend this date on the advice of the Commission”.
Given the delay in bargaining caused by the appeal in Allen Family and the remedial measures the Applicant wishes to take in relation to the Proposed Agreement, it is appropriate to extend the default period further until 28 June 2024.
Pursuant to subitem to item 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), we order that the default period for the Agreement, is extended until 28 June 2024. An order extending the default period for the Agreement to 28 June 2024 will be published separately. The Agreement is published, in accordance with subitem (10A)(c), as an Annexure to this decision.
DEPUTY PRESIDENT
[1] [2023] FWCFB 105.
[2] [2024] FWCFB 48
[3] [2023] FWCFB 122 at [4]
[4] [2023] FWCFB 105 at [18]
[5] See Suncaost Scaffolding Pty Ltd id and Applications by APESMA [2023] FWCFB 137 at [31]
Printed by authority of the Commonwealth Government Printer
<AC323758 PR773485>
0
0
0