Mel & Mel Enterprises Pty Ltd t/a Subway Murray Bridge and Subway Tailem Bend

[2024] FWCFB 472

[2024] FWCFB 472 [Note: A copy of the zombie agreement to which this decision relates (AC321033) 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

Mel & Mel Enterprises Pty Ltd t/a Subway Murray Bridge and Subway Tailem Bend

(AG2024/1878)

MEL & MEL ENTERPRISES PTY LTD EMPLOYEE COLLECTIVE AGREEMENT

Retail Industry

DEPUTY PRSIDENT WRIGHT

DEPUTY PRESDIENT ROBERTS

DEPUTY PRESIDENT SLEVIN

SYDNEY, 23 DECEMBER 2024

Application to extend the default period for Mel & Mel Enterprises Pty Ltd Employee Collective Agreement

1. Mel & Mel Enterprises Pty Ltd t/a Subway Murray Bridge and Subway Tailem Bend

(the Applicant) has applied to extend the default period for the Mel & Mel Enterprises Pty Ltd Employee Collective Agreement (the Agreement) pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth). 

1. The application was made in accordance with subitem 20A(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.

1. An earlier application was made to extend the default period of the Agreement. In a decision issued on 13 March 2024, the Full Bench considered that the requirements in subitem 20A(6)(a) were met as bargaining was occurring for a replacement agreement and it was appropriate in the circumstances to extend the Agreement. The Full Bench ordered that the default period for the Agreement be extended until 30 June 2024 to allow time for a replacement agreement to be made and approved.[1]

1. Submissions were made by the Shop, Distributive and Allied Employees Association (SDA) opposing the application. The SDA submitted that the default period for the Agreement should not be extended because it is an old agreement having been made in 2009, there is no support from employees for it to be extended, it contains provisions which are worse than those in the industry award, the Applicant has had ample opportunity to negotiate a replacement agreement and has failed to do so, and the ongoing operation of the Agreement gives the Applicant an unfair advantage in bargaining a replacement agreement.

1. The Applicant responded to the SDA submissions by advising that it no longer seeks an extension to the Agreement. 

1. Accordingly, we refuse the application to extend the default period of the Agreement.

1. In accordance with item 20A(11)(e) the default period for the Agreement is extended until the date of this decision.  

DEPUTY PRESIDENT

[1]  [2024] FWCFB 134.

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