The Association of Professional Engineers, Scientists and Managers, Australia

[2025] FWCFB 87 [Note: A copy of the zombie agreement to which this decision relates (AC304305) 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

The Association of Professional Engineers, Scientists and Managers,
Australia

(AG2024/4415)

TAHMOOR COAL PTY LIMITED MANAGEMENT TEAM WORKPLACE AGREEMENT 2006

Coal industry

DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT ROBERTS DEPUTY PRESIDENT SLEVIN

SYDNEY, 2 MAY 2025

Application to extend the default period for the Tahmoor Coal Pty Limited Management Team Workplace Agreement 2006

Pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act), The Association of Professional Engineers, Scientists and Managers, Australia (PA) has applied to extend the default period for the Tahmoor Coal Pty Limited Management Team Workplace Agreement 2006 (the Agreement).

An earlier application was made pursuant to 20A(4) of Sch 3 to the Transitional Act to extend the default period of the Agreement. In a decision issued on 22 April 2024 the Full Bench considered that the requirements in subitem (6) were met and it was appropriate in the circumstances to extend the Agreement. The Full Bench found that employees were better off overall if the Agreement applied to them than if the relevant modern award applied. It also found that an extension was otherwise appropriate and ordered that the default period for the Agreement be extended until 6 December 2024. The Full Bench considered this sufficient time to allow a replacement agreement to be made and approved.[1]

Bargaining did not commence at the time of the Full Bench decision. Instead, there was extensive correspondence between PA and the employer from April to October 2024 leading PA to make an application for a majority support determination on 1 November 2024. On 10 December 2024 the Commission issued a decision[2] making the determination sought[3].

The circumstances of this application are not materially different from the first application. The application is not opposed. Accordingly, we are satisfied for the purpose of subitem 20A(6) that the default period for the Agreement should be extended.

Pursuant to item 20A(4) of Sch 3 to the Transitional Act, we order that the default period for the Agreement is extended until 6 December 2025.

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

DEPUTY PRESIDENT

[1] [2024] FWCFB 225

[2] [2024] FWC 3437

[3] PR782246

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Association of Professional Engineers, Scientists and Managers, Australia lodged an application seeking to extend the default period for the Tahmoor Coal Pty Limited Management Team Workplace Agreement 2006. The Association argued that the current default period, which allowed for the agreement to be extended without the consent of the management team, was insufficient to enable the parties to adequately negotiate the new agreement. The dispute centred around the interpretation of the relevant provisions of the Fair Work Act 2009 and the application of the principles of good faith bargaining.

The legal issues before the Commission involved the interpretation of the Fair Work Act, specifically the provisions relating to the extension of workplace agreements and the obligations of the parties to engage in good faith bargaining. The Association contended that the Commission had the discretion to extend the default period, while Tahmoor Coal argued that the Commission was bound by the statutory provisions and could not extend the default period without the consent of the management team.

The Commission determined that it did not have the discretion to extend the default period under the Fair Work Act. The legislation clearly set out the procedures for extending workplace agreements, which required the consent of the management team. The Commission held that the principles of good faith bargaining did not permit the extension of the default period without the agreement of the parties. The Association's application was dismissed.

The Fair Work Commission dismissed the Association's application to extend the default period for the Tahmoor Coal Pty Limited Management Team Workplace Agreement 2006. The Commission found that it did not have the discretion to extend the default period under the Fair Work Act, as the legislation required the consent of the management team for any extension. The principles of good faith bargaining did not permit the extension of the default period without the agreement of the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established