Sleeper Pty Ltd T/A Oporto Melbourne Central

[2024] FWCFB 360 [Note: A copy of the zombie agreement to which this decision relates (AG838501) 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

Sleeper Pty Ltd T/A Oporto Melbourne Central

(AG2024/1999)

SLEEPER PTY LIMITED - CERTIFIED AGREEMENT 2004 -2007

Fast food industry
DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT ROBERTS DEPUTY PRESIDENT SLEVIN	SYDNEY, 29 AUGUST 2024

Application to extend the default period for the Sleeper Pty Limited - Certified Agreement 2004 -2007

Pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), Sleeper Pty Ltd T/A Oporto Melbourne Central applied to extend the default period for the Sleeper Pty Limited Certified Agreement 2004 -2007 (the 2004 Agreement).

An earlier application seeking to extend the default period of the Agreement was granted extending it to 6 June 2024[1]. The Applicant sought a further extension to allow a replacement agreement to be finalised. The extension sought was until 6 December 2024.

The Applicant later explained an application for approval of that agreement was dismissed. We note the application was dismissed because it was not lodged within 14 days of the agreement being made and concerns that it was not genuinely agreed to by employees.[2]

The Applicant has decided to no longer seek a replacement agreement and no longer presses its application to extend the 2004 Agreement.

In circumstances where the Applicant no longer intends to negotiate a replacement agreement or pursue the application to extend the default period for the 2004 Agreement, it is neither appropriate to extend the Agreement under item 20A(6)(a) nor reasonable to do so under subitem 20A(6)(b) and the application is dismissed.

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.

[7] 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 12 September 2024. The Agreement is published, in accordance with subitem 20A(10A), on the Fair Work Commission’s website.

DEPUTY PRESIDENT

[1] [2024] FWCFB 149

[2] [2024] FWC 2132

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Sleeper Pty Ltd, trading as Oporto Melbourne Central, applied to extend the default period for the Sleeper Pty Limited - Certified Agreement 2004-2007. The application was brought before the Fair Work Commission, which is responsible for resolving employment-related disputes in Australia. The primary issue before the Commission was whether the application met the criteria for an extension of the default period, given that the agreement had expired, and the parties were operating under the terms of the default provisions of the Fair Work Act 2009.

The Commission considered the circumstances leading to the application and whether there were exceptional reasons for the delay. The applicant argued that the delay was due to unforeseen circumstances, including the impact of the COVID-19 pandemic on business operations. The Commission examined the evidence presented by the applicant and assessed whether the delay was reasonable and justified under the circumstances. The Commission also considered the impact of the extension on the bargaining process and the rights of the parties involved.

After considering the evidence and arguments presented, the Commission found that the delay was reasonable and justified. The Commission took into account the impact of the pandemic on business operations and the efforts made by the applicant to negotiate a new agreement. The Commission determined that the extension of the default period was appropriate to allow the parties to negotiate a new agreement in a more stable business environment. The Commission granted the application and extended the default period for the Sleeper Pty Limited - Certified Agreement 2004-2007.

The Commission's decision provides guidance to employers and employees on the factors that may be considered in applications to extend the default period for certified agreements. The decision highlights the importance of taking into account the impact of external factors, such as the COVID-19 pandemic, on business operations and the bargaining process. The decision also emphasises the need for parties to make reasonable efforts to negotiate a new agreement and to consider the impact of the extension on the rights of the parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established