Subway Bridge Street Pty Ltd T/A Subway & Caneramble Pty Ltd T/A Subway

[2024] FWCFB 215 [Note: A copy of the zombie agreement to which this decision relates (AG848351) 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

Subway Bridge Street Pty Ltd T/A Subway & Caneramble Pty Ltd T/A Subway

(AG2023/4880)

SUBWAY TOOWOOMBA CERTIFIED AGREEMENT 2006

Fast food industry

DEPUTY PRESIDENT SLEVIN

COMMISSIONER CONNOLLY

COMMISSIONER TRAN

SYDNEY, 17 APRIL 2024

Application to extend the default period for the Subway Toowoomba Certified Agreement 2006

Introduction

Pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, Subway Bridge Street Pty Ltd T/A Subway and Caneramble Pty Ltd T/A Subway have applied to extend the default period for the Subway Toowoomba Certified Agreement 2006 (the Agreement).

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

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 application was 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 Agreement.[1]

The replacement agreement commenced operation on 12 April 2024. The purpose of the extension is to ensure the Agreement 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 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 7 days after the approval decision of the new replacement agreement on 12 April 2024.

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

DEPUTY PRESIDENT

[1] [2024] FWCA 1235.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Subway Bridge Street Pty Ltd and Caneramble Pty Ltd, trading as Subway, applied to the Fair Work Commission for an extension of the default period for the Subway Toowoomba Certified Agreement 2006. The original agreement was set to terminate on 6 December 2023, but the applicants sought an extension due to the recent approval of a new enterprise agreement covering the same group of employees. The new agreement was set to commence on 12 April 2024. The Commission was required to determine whether it was reasonable to extend the default period for the original agreement to avoid any gap in the application of an employment agreement to the employees.

The Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 provided the legal framework for the application. Specifically, subitem 20A(4) of Schedule 3 to the Act permitted the Commission to extend the default period if it was reasonable to do so. The Commission considered the circumstances, including the approval of the new agreement, and concluded that it was reasonable to extend the default period to prevent a period without an applicable agreement. The Commission found that the extension would ensure continuity in the terms of employment for the employees during the transition period between the termination of the original agreement and the commencement of the new one.

The Fair Work Commission granted the application and ordered that the default period for the Subway Toowoomba Certified Agreement 2006 be extended until seven days after the approval decision of the new replacement agreement on 12 April 2024. This decision ensured that the employees remained under a valid agreement throughout the transition period, avoiding any potential employment disruptions. The Agreement was published on the Fair Work Commission’s website in compliance with the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established