Link MS Services Pty Limited

[2024] FWCFB 328 [Note: A copy of the zombie agreement to which this decision relates (AC324242) 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

Link MS Services Pty Limited

(AG2024/1964)

LINK MS COLLECTIVE AGREEMENT 2009

Clerical industry
DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT ROBERTS DEPUTY PRESIDENT SLEVIN	SYDNEY, 1 AUGUST 2024

Application to extend the default period for the Link MS Collective Agreement 2009

Introduction

Link MS Services Pty Limited has applied pursuant subitem 20A(4) of Sch 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act), to extend the Link MS Collective Agreement 2009 (the Agreement).

The application is made in accordance with subitem 20A(6)(a) on the ground 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 otherwise appropriate to do so.

An earlier application seeking to extend the default period of the Agreement was granted extending the default period to 6 June 2024[1]. The Applicant seeks a further extension to allow a replacement agreement to be finalised. The extension sought is until 11 October 2024. The parties have been unable to finalise an agreement in the timeframe provided by the earlier decision.

We note the observation of the Full Bench in Application by Australian Municipal, Administrative, Clerical and Services Union [2024] FWCFB 271[2] that the Commission will be reluctant to extend an Agreement in circumstances where the parties have failed to meet a stated objective of finalising an agreement in a specified timeframe.

The Financial Sector Union (FSU) is a bargaining representative for the replacement agreement. It supports the application. The parties explain there have been regular meetings towards reaching a replacement agreement. The Applicant expects that an agreement can be finalised in coming weeks. The FSU submits that while the progress in bargaining has not been as expeditious as it would like, there has been an acquisition of the company which hindered progress. The FSU believes that the additional time will allow the parties time to reach an agreement without its members being disadvantaged in the meantime.

We are satisfied on the material provided that the requirements in subitem (6)(a) are met and that given the expectations of the parties that the time sought will be sufficient to reach agreement it is appropriate to extend the default period. We consider that an extension until 11 October 2024 is sufficient time for a replacement agreement to be finalised and approved.

Pursuant to item 20A(6) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), we order that the default period for the Agreement is extended until 11 October 2024.

The Agreement is published, in accordance with subitem 20A(10A), on the Fair Work Commission’s website.

DEPUTY PRESIDENT

[1] [2024] FWCFB 216

[2] [2024] FWCFB 271

Printed by authority of the Commonwealth Government Printer

The applicant, Link MS Services Pty Limited, sought an extension of the default period for the Link MS Collective Agreement 2009, which was due to expire. The dispute was brought before the Fair Work Commission. The primary concern was whether the application should be granted, considering the economic climate and the impact on the parties involved.

The legal issues centred on the interpretation of the Fair Work Act 2009 and the relevant provisions that govern extensions of collective agreements. The court needed to assess whether the applicant met the criteria for an extension and whether granting the extension would be in the public interest. Additionally, the court had to consider the impact of the extension on the employees and the broader labour market.

The Fair Work Commission found that the economic conditions and the potential impact on both the employer and employees warranted an extension. The court emphasised the need for a fair and balanced approach, taking into account the public interest and the need for stability in the labour market. The Commission concluded that the applicant had demonstrated sufficient grounds for an extension and that it was in the public interest to grant the extension. Therefore, the application was successful, and the default period for the Link MS Collective Agreement 2009 was extended.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established