Link MS Services Pty Limited

[2024] FWCFB 216 [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 instrument

Link MS Services Pty Limited

(AG2023/4833)

LINK MS COLLECTIVE AGREEMENT 2009
Clerical industry
DEPUTY PRESIDENT ROBERTS DEPUTY PRESIDENT SLEVIN COMMISSIONER CRAWFORD	SYDNEY, 19 APRIL 2024

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

Introduction

Link MS Services Pty Limited has applied pursuant subitem 30(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). Sch 7 applies to enterprise agreements made during the bridging period. However, the Agreement was made before the bridging period and is a collective agreement-based transitional instrument and item 20A of Sch 3 applies.

We will consider the application as if it was made under made under subitem 20A(4) of Sch 3. Under subitem 20A(1) the Agreement was to terminate on 6 December 2023.

The application is made 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 application was made after the notification time for the proposed enterprise agreement.

The Full Bench in ISS Health Services Pty Ltd[1] described the requirements that must be met for an application to extend the default period where bargaining for a replacement agreement is made.

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 and we consider that an extension until 6 June 2024 is sufficient time for a replacement agreement to be made 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 6 June 2024.

The Agreement is published, in accordance with subitem 20A(10A)(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

In the matter of Link MS Services Pty Limited, the Fair Work Commission considered an application to extend the default period of the Link MS Collective Agreement 2009. The applicant, Link MS Services Pty Limited, sought to extend the termination date of the Agreement from 6 December 2023 to a later date, pursuant to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The application was made on the basis that bargaining for a replacement enterprise agreement was underway and that an extension would facilitate the completion of these negotiations. The Commission was required to determine whether the statutory requirements for an extension had been met and whether it was appropriate to extend the default period.

The legal issues the Court had to resolve included whether the statutory conditions outlined in subitem 20A(6)(a) of Schedule 3 to the Transitional Act were satisfied. These conditions include the commencement of bargaining for a replacement agreement covering the same or substantially the same group of employees. Additionally, the Commission had to consider the appropriateness of the extension duration. The Court referenced a previous decision, ISS Health Services Pty Ltd, to guide its interpretation of the statutory requirements. The Court found that the applicant had provided sufficient evidence to meet the statutory conditions and that the proposed extension period was reasonable.

After reviewing the material provided and considering the precedent set by ISS Health Services Pty Ltd, the Full Bench found that the applicant had demonstrated that it was in the process of bargaining for a replacement agreement. The Commission was satisfied that the extension until 6 June 2024 was appropriate to allow sufficient time for the negotiation and approval of the new agreement. Accordingly, the Commission ordered the extension of the default period for the Agreement. The Agreement was subsequently published on the Fair Work Commission's website in accordance with the statutory requirements.

The final orders of the Commission were that the default period for the Link MS Collective Agreement 2009 was extended until 6 June 2024. The Agreement was published on the Fair Work Commission's website, ensuring transparency and compliance with the statutory obligations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established