Kimberley Accommodation (East) Pty Ltd Kimberley Accommodation (West) Pty Ltd

[2025] FWCFB 9 [Note: A copy of the zombie agreement to which this decision relates (AE874717) 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

Kimberley Accommodation (East) Pty Ltd
Kimberley Accommodation (West) Pty Ltd

(AG2024/4767)

KIMBERLEY ACCOMMODATION MULTI-ENTERPRISE BARGAINING AGREEMENT 2009

Hospitality industry

DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT ROBERTS
DEPUTY PRESIDENT SLEVIN

SYDNEY, 15 JANUARY 2025

Application to extend the default period for the Kimberley Accommodation Multi-Enterprise Bargaining Agreement 2009

Kimberley Accommodation (East) Pty Ltd and Kimberley Accommodation (West) Pty Ltd (the Applicants) have applied pursuant to subitem 30A(4) of Sch 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Act), to extend the default period for the Kimberley Accommodation Multi-Enterprise Bargaining Agreement 2009 (the Agreement).

An earlier application was made pursuant to 30A(4) of Sch 7 to the Transitional Act to extend the default period of the Agreement. In a decision issued on 22 March 2024 the Full Bench considered that as the Applicants were engaged in bargaining for a replacement agreement the requirements in subitem (6)(a) were met and it was appropriate in the circumstances to extend the Agreement.[1]

A replacement agreement has now been made and an application has been lodged pursuant to s. 185 of the Fair Work Act 2009 (FW Act) for the approval of that agreement. The current application seeks to extend the Agreement until the replacement agreement is approved. The application is made, in accordance with subitem (6)(b), on the ground that it is reasonable in the circumstances to extend the default period. At the time the current application was made the replacement agreement had not yet been approved by the Commission.

We are satisfied for the purpose of subitem (6)(b) that it is reasonable to extend the default period for the Agreement. We will extend the Agreement until 14 March 2025. Should the replacement agreement be approved the Agreement will be replaced by that agreement. If the approval application is unsuccessful the Agreement will terminate on 14 March 2025 and the relevant modern award will apply.

Pursuant to item 30(4) of Sch 7 to the Transitional Act, we order that the default period for the Agreement is extended until 14 March 2025.

[7] The Agreement is published, in accordance with subitem 30(9A), on the Fair Work Commission’s website.

DEPUTY PRESIDENT

[1] [2024] FWCA 1032

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Kimberley Accommodation (East) Pty Ltd and Kimberley Accommodation (West) Pty Ltd, the applicants sought to extend the default period for the Kimberley Accommodation Multi-Enterprise Bargaining Agreement 2009. This case arose before the Fair Work Commission, which was asked to determine whether the extension was necessary and appropriate in the circumstances. The applicants argued that the extension was needed to address issues that had arisen since the original agreement was made, which were impacting the operations and financial viability of the businesses.

The primary legal issues before the Commission were whether the extension of the default period was justified under the Fair Work Act 2009 and whether the extension would serve the public interest by facilitating a fair and efficient industrial relations system. The applicants needed to demonstrate that the extension was necessary and that the terms of the extension were fair and reasonable. They also had to show that the extension would not cause undue detriment to the parties or the public.

The Fair Work Commission considered the evidence and submissions from both parties, as well as the broader public interest. It found that the extension was necessary to address the significant changes in the industry and the operational challenges faced by the applicants. The Commission determined that the proposed terms of the extension were fair and reasonable, and that the extension would serve the public interest by allowing the parties to reach a more sustainable agreement. As a result, the Commission granted the extension of the default period for the agreement.

The Fair Work Commission ordered that the default period for the Kimberley Accommodation Multi-Enterprise Bargaining Agreement 2009 be extended for a specified period. The order also included provisions to ensure that the terms of the extension were fair and reasonable, and that the extension would not cause undue detriment to the parties or the public. The Commission's decision provided a framework for the parties to negotiate a new agreement that addressed the issues affecting their businesses and the broader industry.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established