TMC Australia Pty Ltd

[2024] FWCFB 223 [Note: A copy of the zombie agreement to which this decision relates (AC301471) 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 instrument

TMC Australia Pty Ltd

(AG2023/4851)

TMC AUSTRALIA PTY LTD COLLECTIVE AGREEMENT (2006)
Gardening services industry
DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT SLEVIN COMMISSIONER ALLISON	SYDNEY, 22 APRIL 2024

TMC Australia Pty Ltd has applied pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) to extend the TMC Australia Pty Ltd Collective Agreement (2006) (the Agreement).

The application is made in accordance with subitem 20A(6)(a) on the grounds that bargaining is occurring for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as are covered by the Agreement and that it is appropriate to do so. The application was made after the notification time for the proposed enterprise agreement.

The Full Bench in ISS Health Services Pty Ltd[1] described the requirements that must be met for an application to extend the default period under subitem (6)(a) where bargaining for a replacement agreement is made.

We are satisfied on the material provided that the requirements in subitem (6)(a) are met and that it is appropriate to extend the default period. The applicant has commenced bargaining for a replacement agreement and we consider that an extension until 30 June 2024 is sufficient time for a replacement agreement to be made and approved.

Pursuant to item 20A(6) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), we order that the default period for the Agreement is extended until 30 June 2024.

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

DEPUTY PRESIDENT

[1] [2023] FWCFB 122.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, TMC Australia Pty Ltd applied to the Fair Work Commission for an extension of the default period for the TMC Australia Pty Ltd Collective Agreement (2006). The application was made under subitem 20A(4) of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The company sought an extension to allow time for the negotiation of a new enterprise agreement that would cover the same group of employees as the existing agreement. This application was made after the notification period for the proposed enterprise agreement had passed.

The legal issue before the Full Bench was whether the conditions set out in subitem 20A(6)(a) of Schedule 3 to the Act were satisfied. This subitem permits an extension if it is appropriate to do so, and the company has commenced bargaining for a replacement agreement. The Bench needed to determine whether the application met these criteria and if it was appropriate to extend the default period. The Full Bench in ISS Health Services Pty Ltd provided guidance on the application of these provisions.

The Full Bench found that the requirements in subitem 20A(6)(a) were indeed met. TMC Australia Pty Ltd had commenced bargaining for a replacement agreement, and the Bench considered that an extension until 30 June 2024 was sufficient to allow for the negotiation and approval of a new agreement. The Bench also noted that the existing agreement was published on the Fair Work Commission's website, as required by subitem 20A(10A)(c) of Schedule 3 to the Act. Consequently, the Full Bench ordered an extension of the default period for the Agreement until 30 June 2024.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established