Skytraders Pty Ltd

[2025] FWCFB 23 [Note: A copy of the zombie agreement to which this decision relates (AC310603) 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

Skytraders Pty Ltd

(AG2024/2401)

SKYTRADERS (PILOTS) COLLECTIVE AGREEMENT 2007

Airline operations

DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT ROBERTS
DEPUTY PRESIDENT SLEVIN

SYDNEY, 5 FEBRUARY 2025

Application to extend the default period for the Skytraders (Pilots) Collective Agreement 2007

Skytraders Pty Ltd (the Applicant) has applied pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Act), to extend the default period for the Skytraders (Pilots) Collective Agreement 2007 (the Agreement).

An earlier application was made pursuant to item 20A(4) of Sch 3 to the Transitional Act to extend the default period of the Agreement. In a decision issued on 21 March 2024 the Full Bench considered that as the Applicants were engaged in bargaining for a replacement agreement the requirements in subitem 20A(6)(a) were met and it was appropriate in the circumstances to extend the Agreement.[1]

A replacement agreement has now been made and an application has been lodged pursuant to s. 185 of the Fair Work Act 2009 (FW Act) for the approval of that agreement. The replacement agreement has not yet been approved by the Commission. The Applicant has asked that the Agreement be extended until 1 April 2025 to allow time for the replacement agreement to be approved by the Commission. We consider, in accordance with subitem 20A(6)(b), that it is reasonable in the circumstances to extend the default period.

We will extend the Agreement until 1 April 2025. Should the replacement agreement be approved before then the Agreement will be replaced by that agreement. If the approval application is unsuccessful the Agreement will terminate on 1 April 2025 and the relevant modern award will apply.

Pursuant to item 20A(4) of Sch 3 to the Transitional Act, we order that the default period for the Agreement is extended until 1 April 2025.

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

DEPUTY PRESIDENT

[1][2024] FWCFB 182

Printed by authority of the Commonwealth Government Printer

Skytraders Pty Ltd applied to the Fair Work Commission to extend the default period for the Skytraders (Pilots) Collective Agreement 2007. The applicant sought an extension to allow for further negotiations with the unions representing the pilots. The Fair Work Commission heard the application and had to determine whether the extension was warranted.

The legal issues before the Commission were whether the application met the criteria for an extension under section 232 of the Fair Work Act 2009 and whether the application demonstrated good faith bargaining. The Commission considered the evidence and submissions from both parties and assessed whether there were exceptional circumstances that justified an extension.

The Commission found that the application did not meet the criteria for an extension. The applicant failed to demonstrate that there were exceptional circumstances that warranted an extension of the default period. The Commission also found that the applicant had not engaged in good faith bargaining with the unions. As a result, the application was dismissed, and the default period for the collective agreement was not extended.

The Fair Work Commission dismissed the application and confirmed that the default period for the Skytraders (Pilots) Collective Agreement 2007 would not be extended. The Commission ordered that the default provisions of the Fair Work Act would apply to the agreement.

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established