JSLM Management Pty Ltd t/a Priceline Pharmacy Minto

[2024] FWCFB 178

[2024] FWCFB 178

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 7, Item 30(4) – Application to extend default period for enterprise agreement made during bridging period

JSLM Management Pty Ltd t/a Priceline Pharmacy Minto

(AG2023/4541)

COMMUNITY PHARMACY SINGLE ENTERPRISE AGREEMENT (NSW) (PHARMACY ASSISTANTS INCLUDING DISPENSARY ASSISTANTS EMPLOYED BY JSLM MANAGEMENT PTY LTD)

Pharmacy operations

DEPUTY PRESIDENT WRIGHT      DEPUTY PRESIDENT SLEVIN
DEPUTY PRESIDENT GRAYSON SYDNEY, 21 MARCH 2024

Applications to extend the default period for the Community Pharmacy Single Enterprise Agreement (NSW) (Pharmacy Assistants Including Dispensary Assistants Employed By JSLM Management Pty Ltd)

1. JSLM Management Pty Ltd t/a Priceline Pharmacy Minto (Applicant) has made an application under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act) to extend the default period for the Community Pharmacy Single Enterprise Agreement (NSW) (Pharmacy Assistants Including Dispensary Assistants Employed By JSLM Management Pty Ltd) (Agreement). The application seeks to extend the default period for the Agreement to 6 December 2024.

1. The Agreement was made during the bridging period as defined in Sch 7 of the Transitional Act. It was approved by Fair Work Australia on 15 December 2009[1]. Item 30 of Sch 7 to the Transitional Act applies to the application.

1. Subitem 30(4) of the Transitional Act permits an employer covered by an agreement made during the bridging period to seek an extension of the default period for that agreement.

1. Item 30 of Sch 7 is relevantly in the same terms to item 20A of Sch 3 to the Transitional Act, which is concerned with the automatic sunsetting of, and applications for, extension of the default period for agreement-based transitional instruments. The main features of item 20A of Sch 3 are described in detail in the Full Bench decision in Suncoast Scaffold Pty Ltd[2] and that analysis applies equally to item 26A of Sch 3A. It is not necessary to repeat it here.

1. Subitem 30(6) provides that where an application is made under subitem 30(4) for the period to be extended, the Commission must extend the default period for a period of no more than four years if either a) subitem (7) or (8) applies and it is otherwise appropriate in the circumstances to do so; or  b) it is reasonable in the circumstances to do so.

1. Subitem (7) applies where the application is made at or after the notification time for a

proposed enterprise agreement that will cover the employees and bargaining for the proposed
enterprise agreement is occurring. Subitem (8) applies if it is likely relevant employees covered
by the agreement would be better off overall if the agreement continued to apply rather than the applicable modern Award.

1. In the present matter, the Applicant does not contend that subitem (8) applies. The application is made on the basis that Applicant is negotiating for a new enterprise agreement that would cover the group of employees covered by the Agreement and it seeks time to complete those negotiations.

1. The Full  Bench  in ISS  Health  Services  Pty  Ltd[3] described the requirements that must be met for an application to extend the default period where bargaining for a replacement agreement is made. The first is that the application is made at or after the ‘notification time’ for the proposed replacement agreement. Notification time is defined in s.173(2) of the Fair  Work  Act  2009 (FW  Act). The definition includes the time when the employer agrees to, or initiates, bargaining. Issuing an NERR indicates agreement to bargain for the purpose of s173(2). The Applicant has issued an NERR. The second requirement 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 NERR here satisfies that requirement. Relevantly, the third is that bargaining for the proposed agreement is occurring.

1. The Commission has made two requests of the Applicant to provide details of the bargaining that has occurred for a replacement agreement. The Applicant has not responded. Given we have no information as to whether bargaining for a replacement agreement is taking place we cannot be satisfied of the third requirement in item subitem 30(7). As we are not satisfied that bargaining is occurring the subitem does not apply and we cannot grant the application sought. Nor are we persuaded that it is reasonable in the circumstances to extend the default period.

1. For these reasons the application is dismissed.

1. As our decision is to refuse to extend the default period under subitem 30(6) of Sch 7 and our decision is made after the sunset date in the Transitional Act, subitem 30(10) provides that we must extend the default period to the day of this decision or specify a day that is not more than 14 days after the day of this decision. We have decided that to enable the parties to make the necessary administrative arrangements to give effect to the sunsetting of the Agreement the default period is extended to 4 April 2024.

DEPUTY PRESIDENT

[1] [2009] FWAA 1743.

[2] [2023] FWCFB 105 [3] – [18]

[3] [2023] FWCFB 122

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