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 Summary

[2024] FWCA 1032

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

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).

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.

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.

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.

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.

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.

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

CaseChat Overview and Summary

The applicants, including Kimberley Accommodation (East) Pty Ltd trading as Vagg’s Wyndham Liquor, Hotel Kununurra and Kimberley Hotel, Kimberley Accommodation (West) Pty Ltd trading as Moonlight Bay Suites, Matso’s Broome Brewery and PJIT Head Office, sought to extend the default period for the Kimberley Accommodation Multi-Enterprise Bargaining Agreement 2009. The application was heard in the Fair Work Commission, which was tasked with determining whether the extension of the default period was warranted under the Fair Work Act 2009. The applicants argued that the extension was necessary due to the unique circumstances of the Kimberley region, including the remoteness and the specific economic challenges faced by businesses in the area.

The central legal issue was whether the Commission had the authority to extend the default period for the agreement, and if so, whether it was appropriate to do so in this instance. The applicants relied on provisions of the Fair Work Act and argued that the unique conditions of the Kimberley region warranted a different approach. The respondents, including the Kimberley Regional Council of the Australian Workers' Union, contended that the default period should not be extended, as it could undermine the stability and predictability of industrial relations in the region.

The Commission considered the evidence presented and the arguments from both sides. It acknowledged the specific economic and geographical challenges faced by businesses in the Kimberley region but also noted the importance of maintaining a stable industrial relations environment. After careful consideration, the Commission determined that while the unique circumstances of the Kimberley region warranted some flexibility, the extension of the default period was not appropriate in this instance. The Commission concluded that the potential benefits of an extension did not outweigh the risks to the stability and predictability of industrial relations in the region.

The Commission refused the application to extend the default period for the Kimberley Accommodation Multi-Enterprise Bargaining Agreement 2009. This decision ensures that the industrial relations framework in the Kimberley region remains stable and predictable, while also recognising the unique challenges faced by businesses in the area. The refusal of the application provides clarity for all parties involved and maintains the integrity of the industrial relations system.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established