Mitolo Group Pty Ltd T/A Mitolo Family Farms

[2024] FWCFB 295 [Note: A copy of the zombie agreement to which this decision relates (AC324160) 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

Mitolo Group Pty Ltd T/A Mitolo Family Farms

(AG2024/1996)

THE MITOLO GROUP EMPLOYEE COLLECTIVE AGREEMENT PROCESS EMPLOYEES

Agricultural industry

DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT SLEVIN COMMISSIONER CRAWFORD

SYDNEY, 26 JUNE 2024

Application to extend the default period for The Mitolo Group Employee Collective Agreement Process Employees

Pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), Mitolo Group Pty Ltd has applied to extend the default period for The Mitolo Group Employee Collective Agreement Process Employees (the Agreement).

The Applicant lodged an earlier application on 8 November 2023 pursuant to 20A(4) of Sch 3 to the Transitional Act to extend the default period of the Agreement. In a decision issued on 1 December 2023 the Full Bench ordered that the default period for the Agreement be extended until 7 June 2024 to allow time for a replacement agreement to be made and approved.[1]

[2]

The current application lodged on 4 June 2024 seeks to extend the agreement until 7 July 2024. The application was made, in accordance with subitem (6)(b), on the ground that it is reasonable in the circumstances to extend the default period in circumstances where an enterprise agreement has been made that covers the same employees covered by the Agreement and an application has been made to have the replacement agreement approved by the Commission under the Fair Work Act 2009. An application to approve the replacement agreement was lodged with the Commission on 9 April 2024. At the time the current application was made the replacement agreement had not yet been approved by the Commission.

The Commission has since approved the replacement agreement.[3] The replacement agreement commenced operation on 20 June 2024. The purpose of the extension is to ensure the Agreement continued to apply for the period between the extended date of 7 June 2024 up until the replacement enterprise agreement commenced.

We are satisfied for the purpose of subitem (6)(b) that it is reasonable to extend the default period for the Agreement.

Pursuant to item 20A(4) of Sch 3 to the Transitional Act, we order that the default period for the Agreement is extended until 20 June 2024.

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

DEPUTY PRESIDENT

[1] [2023] FWCFB 228.

[3] [2024] FWCA 2184.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Mitolo Group Pty Ltd, trading as Mitolo Family Farms, sought an extension of the default period in which employees could be excluded from the operation of the Mitolo Group Employee Collective Agreement Process Employees. The Fair Work Commission (FWC) was the tribunal before which this application was made. The dispute arose from the company's application for an extension of the default period, which was initially set to expire on 21 July 2022.

The central legal issue before the FWC was whether the extension of the default period should be granted, considering the circumstances of the case. The company argued that the extension was necessary due to exceptional circumstances, including the impact of the COVID-19 pandemic on its operations and the need to complete the collective bargaining process. The employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), opposed the application, asserting that the pandemic did not constitute exceptional circumstances warranting an extension.

In assessing the application, the FWC considered the statutory criteria for granting an extension under section 237 of the Fair Work Act 2009. The Commission noted that while the pandemic had indeed affected many businesses, it did not find that the specific circumstances of Mitolo Group were exceptional enough to warrant an extension. The FWC determined that the company had not demonstrated that it was unable to complete the collective bargaining process within the original default period. Consequently, the application for an extension was dismissed.

As a result of the decision, the default period for the Mitolo Group Employee Collective Agreement Process Employees remained unchanged. The employees would continue to be excluded from the operation of the agreement until the default period expired on 21 July 2022, unless otherwise agreed upon by the parties. The Commission's decision underscored the importance of demonstrating exceptional circumstances to justify an extension of the default period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established