SSUT Pty Ltd T/A East End Hotel

[2024] FWCFB 130

[2024] FWCFB 130 Note: A copy the zombie agreement to which this decision relates (AG540005) is available on our website.]

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 3A, Item 26A(4) - Application to extend default period for Division 2B State employment agreements

SSUT Pty Ltd T/A East End Hotel

(AG2023/4961)

EAST END HOTEL CERTIFIED AGREEMENT 2002

Hospitality industry

DEPUTY PRESIDENT SLEVIN

DEPUTY PRESIDENT O’KEEFFE

COMMISSIONER LIM

SYDNEY, 12 MARCH 2024

Application to extend the default period for East End Hotel Certified Agreement 2002

1. SSUT Pty Ltd (Applicant) has applied under item 26A(4) of Schedule 3A to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) to extend the default period for the East End Hotel Certified Agreement 2002 (Agreement) to 30 June 2024.

1. The Agreementwas approved on 23 December 2009 under s 156 of the Industrial Relations Act 1999 (Qld). It is a Division 2B State employment agreement for the purposes of item 5 of Schedule 3A of the Transitional Act. It is also a collective agreement-based transitional instrument for the purposes of the Transitional Act.

1. The Transitional Act was amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay)Act 2022 (Amendment Act) to provide for the automatic termination of all remaining transitional instruments. The Amendment Act refers to transitional instruments as ‘zombie’ agreements. Pursuant to items 26A(1) and (2) of Schedule 3A to the Transitional Act, Division 2B State employment agreements were to terminate on 6 December 2023 unless extended by the Commission.

1. Item 26A is relevantly in identical terms to item 20A of Sch 3 to the Transitional Act, which is concerned with the automatic sunsetting of, and applications for, extension of the default period for agreement-based transitional instruments. The main features of item 20A of Sch 3 are described in detail in the Full Bench decision in Suncoast Scaffold Pty Ltd[1] and affirmed in Royal Aero Club of Western Australia Inc.[2] That analysis applies equally to item 26A of Sch 3A. It is not necessary to repeat it here.

1. When an application is made under subitem (4) of item 20A of Sch 3 to the Transitional Act, the Commission is required, under subitem (6) of item 26A the Commission is required to extend the default period for an agreement-based transitional instrument if the Commission is satisfied that:

(a) Subitem (7), (8) or (9) applies and it is otherwise appropriate in the circumstances to do so; or 

(b) it is reasonable in the circumstances to do so. 

1. The application has been made pursuant to subitem 6(b) on the basis that it is reasonable in the circumstances to extend the default period to 30 June 2024.

The Applicant’s case

1. The Applicant provided the following information in support of its application:

(a)The Applicant operates a hotel and bottle shop in a regional area in Queensland. The Applicant employs approximately 40 employees. All 40 employees are covered by the Agreement.

(b)A Notice of Employee Representational Rights for a proposed new agreement was issued on 21 December 2023. There having been delays in progressing bargaining as December and the lead up to Christmas is the peak time for the Applicant’s bottle shop.

(c)There are complexities involved in bargaining for a new agreement due to the relative size of the workforce, the number of casual employees and the varying provisions of the Hospitality Award.

(d)The Applicant anticipates that it can finalise bargaining by the end of February 2024.

Consideration

1. In Suncoast Scaffolding Pty Ltd the Full Bench described the ‘reasonable’ criterion in applications to extend default periods as follows[3]:

[17] Subitem (6)(b) of item 20A constitutes an independent pathway to the grant of an extension. The ‘reasonable’ criterion in the subitem should, in our view, be applied in accordance with the ordinary meaning of the word –that is, ‘agreeable to reason or sound judgment’. Reasonableness must be assessed by reference to the ‘circumstances’ of the case, that is, the relevant matters and conditions accompanying the case. Again, a broad evaluative judgment is required to be made.

1. The Commission is required to grant an extension to the default period if the conditions of subitem 6(b) are satisfied. However, there is a discretion as to the length of the extension, subject to the limitation that the extension cannot be for more than four years.

1. We have not been advised that the bargaining has finalised however, we are of the view that, as bargaining is occurring and the anticipated completion of that bargaining is soon it is reasonable to extend the default period to 6 April 2024.

1. Accordingly, the default period for the Agreement is extended until 6 April 2024. An order to give effect to this decision will be published separately.

1. The Agreement is published, in accordance with item 20A(10A)(c) of Sch 3 to the Transitional Act, as an annexure to this decision.

DEPUTY PRESIDENT

[1] [2023] FWCFB 105.

[2] [2023] FWCFC 247.

[3] Ibid.

Printed by authority of the Commonwealth Government Printer

<AG540005  PR772264>