Pierre Properties Pty Ltd

[2024] FWCFB 128 Note: A copy the zombie agreement to which this decision relates (AG838442) 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

Pierre Properties Pty Ltd

(AG2023/4983)

CACTUS JACK’S RESTAURANTS – QUEENSLAND – CERTIFIED AGREEMENT 2004 – 2007
Restaurant industry
DEPUTY PRESIDENT SLEVIN COMMISSIONER CRAWFORD COMMISSIONER ALLISON	SYDNEY, 7 MARCH 2024

Application to extend the default period for Cactus Jack’s Restaurants – Queensland – Certified Agreement 2004 – 2007

Pierre Properties Pty Ltd applies pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), to extend the default period for the Cactus Jack’s Restaurants – Queensland – Certified Agreement 2004 - 2007 (the Agreement).

The application is 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. 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. The views of the seven appointed employee bargaining representatives were sought and those that responded all indicated they support the default period for the Agreement being extended to 6 June 2024.

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

Pierre Properties Pty Ltd applied to the Fair Work Commission to extend the default period of the Cactus Jack’s Restaurants – Queensland – Certified Agreement 2004 – 2007. The application was made under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, seeking to extend the default period until 6 June 2024. The application was lodged after the notification time for the proposed enterprise agreement, and it was submitted that bargaining for the new agreement was occurring for the same, or substantially the same, group of employees as covered by the existing agreement.

The court had to determine whether the application met the criteria set out in subitem 20A(6)(a) of the Act. The Full Bench in ISS Health Services Pty Ltd provided guidance on the requirements for extending the default period in such circumstances. The court found that the applicant had commenced bargaining for a replacement agreement and that the proposed extension until 6 June 2024 was sufficient time to allow for the negotiation and approval of the new agreement. The court also noted that the employee bargaining representatives who responded supported the extension of the default period.

The Fair Work Commission granted the application and ordered that the default period for the Cactus Jack’s Restaurants – Queensland – Certified Agreement 2004 – 2007 be extended until 6 June 2024. The agreement was published on the Fair Work Commission’s website as required by the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established