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

[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

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).

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.

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]

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.

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

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

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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Mel & Mel Enterprises Pty Ltd, trading as Subway Murray Bridge and Subway Tailem Bend, sought an extension of the default period for their employee collective agreement, as per subitem 20A(4) of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth). The application was made to the Fair Work Commission, with submissions from the Shop, Distributive and Allied Employees Association (SDA) opposing the extension. The SDA argued that the agreement was outdated, lacked employee support, contained inferior provisions compared to the industry award, and provided the Applicant with an unfair bargaining advantage. The Applicant, however, withdrew its request for an extension during the proceedings.

The primary legal issue before the Commission was whether the default period for the existing collective agreement should be extended. This involved assessing the merits of the Applicant's application against the statutory criteria and considering the submissions from the SDA. The Commission needed to determine if the conditions specified in subitem 20A(6)(a) of the Act were met, particularly whether ongoing bargaining for a replacement agreement justified the extension and if it was appropriate to do so under the circumstances.

The Commission examined the statutory criteria and the submissions from the SDA. The SDA highlighted the age of the agreement, the lack of employee support, and the inferior provisions it contained. The Commission noted that a previous application for an extension was granted on 13 March 2024, but the Applicant subsequently withdrew its request. Given the Applicant's withdrawal and the SDA's opposition, the Commission concluded that it was not appropriate to extend the default period. The Commission also extended the default period until the date of the decision in accordance with item 20A(11)(e).

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established