Kimberley Accommodation (East) Pty Ltd T/A Vagg’s Wyndham Liquor, Hotel Kununurra and Kimberley Hotel, Kimerley Accommodation (West) Pty Ltd T/A Moonlight Bay Suites, Matso’s Broome Brewery and PJIT Head Office

[2024] FWCFB 185

[2024] FWCFB 185 [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. 7, Item 30(4) - Application to extend default period for enterprise agreements made during the bridging period

Kimberley Accommodation (East) Pty Ltd T/A Vagg’s Wyndham Liquor, Hotel Kununurra and Kimberley Hotel, Kimerley Accommodation (West) Pty Ltd T/A Moonlight Bay Suites, Matso’s Broome Brewery and PJIT Head Office

(AG2023/4941)

KIMBERLEY ACCOMMODATION MULTI-ENTERPRISE BARGAINING AGREEMENT 2009

Hospitality industry
DEPUTY PRESIDENT GRAYSON DEPUTY PRESIDENT LIM DEPUTY PRESIDENT THORNTON	SYDNEY, 22 MARCH 2024

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

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

1. The application is made in accordance with subitem 30(6)(a) on the grounds that bargaining is occurring for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as are covered by the Agreement and that it is appropriate to do so. The notification time for the proposed enterprise agreement was 9 November 2023.

1. The Full Bench in ISS Health Services Pty Ltd[1] described three requirements that must be met for an application to extend the default period where bargaining for a replacement agreement is made. Though ISS Health Services Pty Ltd involved a Division 2B State employment agreement to which Sch 3A of the Act applies, the principles are identical to those applying to agreements made during the bridging period to which Sch 7 applies. The requirements are as follows:

(a)the application must have been made at or after the ‘notification time’ for a proposed enterprise agreement;

(b)the proposed enterprise agreement must cover the same, or substantially the same, group of employees as the Division 2B State employment agreement; and

(c)bargaining for the proposed enterprise agreement must be occurring.

1. The Applicants have provided the following information in support of the application:

(a)The Applicants operate five venues spread out across Broome, Halls Creek, Kununurra and Wyndham in the north of Western Australia.

(b)The Applicants have commenced bargaining for a new enterprise agreement. Relevant employees were provided with a Notice of Employee Representational Rights on 9 November 2023.

(c)There are currently 140 employees covered by the Agreement. The Applicants intend for the same employees to be covered by the proposed new agreement.

(d)There have been information sessions to discuss the new enterprise agreement held on 1 December 2023; 19 December 2023; 9 January 2024; 30 January 2024; and 31 January 2024.

(e)The consultations and negotiations are affected by the geographical locations of the Applicants’ operations, which are spread out over approximately 1100 kilometres. These locations are also subject to extreme weather events. This makes consultation and negotiation with staff unique.

(f)Approximately 65% of the Applicants’ employees are persons who do not speak English as a first language. This will also impact negotiations as the Applicants will need to arrange for translated documents or the services of a translator throughout the negotiations.

1. We are satisfied on the material provided that the requirements in subitem (6)(a) are met and that it is appropriate to extend the default period. The applicant has commenced bargaining for a replacement agreement. The factors impacting on that bargaining for the Applicant and its employees are numerous and significant. We consider that an extension until 1 December 2024 is sufficient time for a replacement agreement to be made and approved.

1. Pursuant to item 30(6) of Sch 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), we order that the default period for the Agreement, is extended until 1 December 2024.

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

DEPUTY PRESIDENT

[1] [2023] FWCFB 122.

Printed by authority of the Commonwealth Government Printer

<AE874717  PR772666>