Rain Bird (Australia) Pty Ltd T/A Rain Bird Australia

[2024] FWCFB 374 [Note: A copy of the zombie agreement to which this decision relates (AC324088) 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

Rain Bird (Australia) Pty Ltd T/A Rain Bird Australia

(AG2024/2393)

RAIN BIRD COLLECTIVE AGREEMENT 2009

Manufacturing and associated industries

DEPUTY PRSIDENT WRIGHT

DEPUTY PRESDIENT ROBERTS

DEPUTY PRESIDENT SLEVIN

SYDNEY, 17 SEPTEMBER 2024

Application to extend the default period for Rain Bird Collective Agreement 2009

Rain Bird (Australia) Pty Ltd T/A Rain Bird Australia (the Applicant) has applied to extend the default period for the Rain Bird Collective Agreement 2009 (Agreement) pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth).

An earlier application was made to extend the default period of the Agreement. In a decision issued on 21 March 2024 the Full Bench considered that the requirements in subitem 20A(6)(a) were met 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]

The current application, lodged on 28 June 2024, seeks to extend the Agreement until 31 August 2024, or the date which is 7 days after the Applicant’s new enterprise agreement is approved by the Fair Work Commission. The application was made, in accordance with subitem 20A(4) , on the ground that it is reasonable in the circumstances to extend the default period 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 6 June 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.[2] The replacement agreement commenced operation on 19 August 2024.

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 19 August 2024.

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

DEPUTY PRESIDENT

[1] [2024] FWCFB 177

[2] [2024] FWCA 2955

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Rain Bird (Australia) Pty Ltd, trading as Rain Bird Australia, applied to the Fair Work Commission to extend the default period for the Rain Bird Collective Agreement 2009. The company sought to extend the agreement until 31 August 2024, or until seven days after their new enterprise agreement was approved by the Fair Work Commission. This application followed an earlier decision by the Full Bench of the Commission, which had already extended the agreement until 30 June 2024. The application was made under subitem 20A(4) of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, on the basis that it was reasonable to extend the default period as a new enterprise agreement covering the same employees had been made, and an application to approve the replacement agreement was pending before the Commission.

The central legal issue before the Commission was whether it was reasonable to further extend the default period for the collective agreement, given that a new enterprise agreement had been negotiated and an application to approve it was pending. The Commission considered the requirements set out in subitem 20A(6)(a) and (b) of the Transitional Act, which relate to the reasonableness of extending the default period and the approval of a replacement agreement. The Commission had to determine if it was reasonable to extend the agreement in the circumstances, particularly in light of the pending approval of the new enterprise agreement.

In making its decision, the Commission noted that an earlier application to extend the agreement had already been approved, and the replacement enterprise agreement had subsequently been made and approved by the Commission. Given these developments, the Commission concluded that it was reasonable to extend the default period for the Agreement. The Commission found that extending the period until 19 August 2024 would allow for a smooth transition to the new enterprise agreement. Consequently, the Commission ordered the extension of the default period for the Rain Bird Collective Agreement 2009 until 19 August 2024.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established