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

[2024] 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

The applicant, Kimberley Accommodation (East) Pty Ltd, sought to extend the default period for the Kimberley Accommodation Multi-Enterprise Bargaining Agreement 2009. The respondent, Kimberley Accommodation (West) Pty Ltd, opposed the application. The dispute was heard in the Fair Work Commission, with Commissioner R A Smith presiding. The primary issue before the court was whether the applicant could be granted an extension of the default period for the collective agreement in question. This required the court to consider the statutory provisions governing such extensions, as well as the principles of fairness and good faith bargaining.

The court found that the applicant had acted with a degree of diligence in seeking to extend the default period, but that there were still significant delays that had occurred. The court further held that the respondent had not acted in good faith during the bargaining process, which had contributed to the delays. The court found that the applicant had not demonstrated that the delays were due to circumstances beyond its control, and that it had not taken reasonable steps to mitigate the delays. However, the court also found that the respondent's conduct had been unreasonable and had contributed to the delays. Ultimately, the court found that the applicant had not met the threshold for an extension of the default period, but that it had demonstrated a willingness to engage in good faith bargaining.

The court held that the application for an extension of the default period should be dismissed, but that the parties should be encouraged to continue their negotiations in good faith. The court also ordered that the parties should provide regular updates to the commission on their progress in bargaining, and that they should endeavour to reach agreement on a new collective agreement as soon as possible. The court further ordered that the parties should take all reasonable steps to avoid further delays, and that they should endeavour to reach agreement on a new collective agreement that is in the best interests of both parties and their employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established