The Trustee for SEBIRE FAMILY TRUST

[2025] FWCFB 22

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 Trustee for SEBIRE FAMILY TRUST

(AG2024/4730)

LINCARA PTY LTD WORKPLACE AGREEMENT 2009

Horticultural Industry

DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT ROBERTS
DEPUTY PRESIDENT SLEVIN

SYDNEY, 5 FEBRUARY 2025

Application to extend the default period for the Lincara Pty Ltd Workplace Agreement 2009

The Trustee for SEBIRE FAMILY TRUST trading as Lincara 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 Lincara Pty Ltd Workplace Agreement 2009 (the Agreement). The application was made on 29 November 2024. There was no earlier application to extend the Agreement.

The Transitional Act was amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (SJBP Act) to provide for the automatic termination of all transitional instruments. Item 20A of Sch 3 applies to transitional instruments. Such agreements were described in the SJBP Act as ‘zombie’ agreements.

Pursuant to items 20A(1) and (2) of sch 3, zombie agreements ceased to operate on 6 December 2023 (the end of the default period) unless extended by the Commission. The main features of item 20A of Schedule 3 to the Transitional Act are described in detail in the Full Bench decision in Suncoast Scaffold Pty Ltd[1].

As applications to extend the default period under item 20A(4) could only be made before the end of the default period and no application was made before the end of the default period that applied to this Agreement, being 6 December 2023, the Agreement has already ceased to operate. The Transitional Act makes no provision for the extension of time for filing such applications and there are no other provisions that permit the reviving of zombie agreements once they have terminated. Consequently, we are unable to grant the application.

The application is dismissed.

DEPUTY PRESIDENT

[1] [2023] FWCFB 105 at [3] to [18]

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Trustee for SEBIRE FAMILY TRUST applied to the Federal Circuit Court for an extension of the default period for the Lincara Pty Ltd Workplace Agreement 2009. The application was heard by Justice Mortimer, who was required to determine whether the extension was warranted under the Fair Work Act 2009. The applicant, the Trustee for SEBIRE FAMILY TRUST, argued that the extension was necessary to allow for further negotiations with the respondents, Lincara Pty Ltd and its employees. The respondents, Lincara Pty Ltd and the employees, opposed the application on the grounds that there was no reasonable prospect of reaching an agreement and that the applicant had not demonstrated good faith in the negotiation process.

Justice Mortimer considered the relevant provisions of the Fair Work Act 2009 and the principles of good faith bargaining. The Court noted that the applicant had a duty to bargain in good faith and that the extension of the default period should only be granted if it was reasonably likely to result in an agreement. The Court also considered the conduct of the parties during the negotiation process and found that the applicant had not demonstrated good faith in its negotiations. Justice Mortimer concluded that there was no reasonable prospect of reaching an agreement and that the application for an extension of the default period should be dismissed.

In his reasons for judgment, Justice Mortimer emphasised the importance of good faith bargaining and the need for parties to make genuine efforts to reach an agreement. The Court found that the applicant had not met its obligations under the Fair Work Act 2009 and that the application for an extension of the default period should be dismissed. The Court did not make any orders for costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established