NGS Services Group Pty Ltd
[2024] FWCFB 326
•1 AUGUST 2024
| [2024] FWCFB 326 [Note: A copy of the zombie agreement to which this decision relates (AC302833) 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
NGS Services Group Pty Ltd
(AG2024/1934)
NATIONAL MANAGEMENT GROUP EMPLOYEE COLLECTIVE AGREEMENT 2006
| Security industry | |
| DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT ROBERTS | SYDNEY, 1 AUGUST 2024 |
Application to extend the default period for the National Management Group Employee Collective Agreement 2006
NGS Services Group Pty Ltd applied under Item 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (TransitionalAct) to extend the default period for the National Management Group Employee Collective Agreement 2006 (Agreement),
An earlier application seeking to extend the default period of the Agreement was granted extending the default period to 6 June 2024[1]. The application to further extend the Agreement was 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 was otherwise appropriate to do so. The applicant proposed that the Agreement be further extended until 1 January 2025.
The application was opposed by a bargaining representative for the replacement agreement. A timetable was set for the hearing of the application. The matter was to be heard on 5 August 2024. On 22 July 2024 the Applicant lodged a notice of discontinuance with a request that the discontinuance take effect from 5 August 2024.
Section 588 of the Fair Work Act 2009 (Cth) (FW Act) provides that a person may discontinue an application in accordance with the procedural rules. The Fair Work Commission Rules 2024 at rule 10 provide that a matter may be discontinued by lodging a notice of discontinuance. In the ordinary course, the lodging of a notice of discontinuance will bring proceedings to an end at the time the notice is lodged. Here the notice was lodged on 22 July 2024, but the Applicant seeks that the matter be discontinued from 5 August 2024. The notice of discontinuance is consequently not made in accordance with the procedural rules. While we may waive compliance with the rules in accordance with rule 7 there is no need to do so here as it will have no practical effect.
Subitem 20A(11) of Schedule 3 of the Transitional Act is to the effect that that where an application is made under subitem 20A(4) and the Commission has not made a decision on the application by the time the Agreement would otherwise terminate, the Agreement continues to operate until the decision is made. If the decision is to refuse to extend the default period, then the Commission must extend the default period to the day the decision is made or a day that is not more than 14 days after the decision is made.
In circumstances where the Applicant wishes to discontinue the application to extend the default period for the Agreement from 5 August 2024, we have decided to refuse the application. It is neither appropriate to extend the Agreement under item 20A(6)(a) nor reasonable to do so under subitem 20A(6)(b). As our decision is made after the Agreement was to terminate in accordance with the first extended default period, we must extend the default period to the day of this decision or specify a day that is not more than 14 days after the date of this decision.
We have decided that to enable the Applicant to make the necessary administrative arrangements to give effect to the sunsetting of the Agreement the default period is extended until 5 August 2024.
DEPUTY PRESIDENT
[1] [2024] FWCFB 90
Printed by authority of the Commonwealth Government Printer
<AC302833 PR777776>
0
0
0