Red Energy Pty Limited

[2024] FWCFB 214 [Note: A copy of the zombie agreement to which this decision relates (AC324556AC324122) 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

Red Energy Pty Limited

(AG2023/4963 and 4964)

Wholesale and retail trade industry

DEPUTY PRESIDENT ROBERTS

COMMISSIONER CRAWFORD

COMMISSIONER PERICA

SYDNEY, 16 APRIL 2024

Application to extend the default period for the Field Sales Collective Agreement 2009 and the Operations Employee Collective Agreement 2009

Introduction

Pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, Red Energy Pty Limited applied to extend the default period for the Field Sales Collective Agreement 2009 (AC324556) and the Operations Employee Collective Agreement 2009 (AC324122) (the Agreements).

The Agreements would have terminated in accordance with subitem 20A(1) on 6 December 2023 save that applications under subitem 20A(4) to extend the Agreement have been made. The Agreements continued pending our decision in those applications.

Subitem 20A(6)(b), allows the Commission to extend on the ground that it is reasonable in the circumstances to do so. The circumstances here are that since the applications were made, an enterprise agreement has been approved by the Commission under the Fair Work Act 2009 which covers the same, or substantially the same, group of employees as are covered by the Agreements.[1]

The replacement agreement commenced operation on 3 April 2024. The purpose of the extension is to ensure the Agreements continued to apply for the period between the termination date of 6 December 2023 in subitem 20A(1) 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 Agreements.

Pursuant to item 20A(4) of Sch 3 to the Transitional Act, we order that the default period for the Agreements are extended until 7 days after the approval decision of the new replacement agreement to 3 April 2024.

The Agreements are published, in accordance with subitem 20A(10A)(c), on the Fair Work Commission’s website and can be accessed through the hyperlinks in Schedule 1 to this decision.

DEPUTY PRESIDENT

Schedule 1

Enterprise Agreement Name	Publication ID
Field Sales Employee Collective Agreement 2009	AC324556
Operations Employee Collective Agreement 2009	AC324122

[1] [2024] FWCA 1087.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The decision involves Red Energy Pty Limited, which applied to the Fair Work Commission under subitem 20A(4) of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The company sought an extension for the default period of two agreements: the Field Sales Collective Agreement 2009 and the Operations Employee Collective Agreement 2009. These agreements were due to terminate on 6 December 2023. The application was made to ensure the agreements continued until a replacement enterprise agreement, which covers the same or substantially the same group of employees, commenced on 3 April 2024.

The legal issues before the Commission were whether it was reasonable to extend the default period for the agreements, considering that an enterprise agreement had been approved by the Commission under the Fair Work Act 2009. Subitem 20A(6)(b) of Schedule 3 of the Transitional Act provides the basis for such an extension if it is deemed reasonable. The Commission also needed to consider the implications of this extension on the workforce and the need to ensure continuity until the new agreement commenced.

The Commission found that it was reasonable to extend the default period for the agreements to prevent a gap in coverage for the employees. The extension would maintain the existing terms and conditions until the new enterprise agreement took effect, ensuring there was no disruption to the employees' employment terms during this transition period. The Commission issued an order extending the default period until seven days after the approval decision of the new replacement agreement, which was 3 April 2024. This decision was based on the necessity to avoid any employment uncertainty and to facilitate a smooth transition to the new enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established