Windolf Farms Pty Ltd T/A Windolf Farms
[2024] FWCFB 467
•20 DECEMBER 2024
| [2024] FWCFB 467 [Note: A copy of the zombie agreement to which this decision relates (AC302212) 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
Windolf Farms Pty Ltd T/A Windolf Farms
(AG2024/1613)
WINDOLF FARMS PTY LTD COLLECITVE AGREEMENT 2006
| Agricultural industry | |
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 20 DECEMBER 2024 |
Application to extend the default period for Windolf Farms Pty Ltd Employee Collective Agreement 2006
Windolf Farms Pty Ltd T/A Windolf Farms (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 Windolf Farms Pty Ltd Collective Agreement 2006 (the Agreement) to allow a replacement agreement to be finalised.
The application is made in accordance with subitem (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 Agreement has been extended previously by a Full Bench until 17 May 2024 in a decision dated 5 April 2024[1]. The Full Bench was satisfied at that time that bargaining was occurring for a proposed enterprise agreement to cover the same, or substantially the same, group of employees as are covered by the Agreement and that it was appropriate to do so. The Full Bench considered, given the progress in the bargaining, that the period until 17 May 2024 was sufficient time for a replacement agreement to be finalised.
In the current application, Ms Windolf, a Director of the Applicant, provided a statutory declaration which explains that a replacement agreement was not finalised by that date. A vote on a replacement Agreement took place on 20 May 2024, and an application for approval was lodged on 5 June 2024. On 20 June 2024, the Company received a list of concerns from Commission regarding the proposed Agreement leading the Company to withdraw the application, amend the proposed agreement to address these issues, and put it to another vote. The issues were more complex than initially thought, particularly regarding the application of the underpinning Horticulture Award to truck drivers, mechanics, and clerical staff.
The Company decided to no longer bargain with truck drivers, mechanics, and clerical employees and amended the proposed replacement agreement accordingly. On 30 August 2024, the Company notified this Full Bench of its intention to make an amended agreement by putting a further proposed agreement to a vote in early September 2024. There were delays in receiving the amended Agreement from its advisors, and the peak season from mid-September to early November 2024 further slowed progress. Ultimately an amended Agreement was distributed to relevant employees, and a vote was scheduled for 6 December 2024. We have not been provided with an update about the vote.
The Full Bench in ISS Health Services Pty Ltd[2] described the requirements that must be met for an application to extend the default period where bargaining for a replacement agreement is occurring. The Full Bench observed in Suncoast Scaffolding Pty Ltd[3] the Commission has a discretion as to the length of the extension, subject to the limitation that the extension cannot be more than four years. The nature of the discretion is such that we are not bound to grant the period of extension sought in the application.[4]
In the circumstances 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 for a short period of time to allow time for the replacement agreement to be approved.
Pursuant to item 20A(4) of Sch 3 to the Transitional Act, we order that the default period for the Agreement is extended until 20 January 2025.
The Agreement is published, in accordance with subitem 20A(10A)(c), on the Fair Work Commission’s website.
DEPUTY PRESIDENT
[1] [2024] FWCFB 200
[2] [2023] FWCFB 122.
[3] [2023] FWCFB 105 at [18].
[4] See Suncaost Scaffolding Pty Ltd [2023] FWCFB 105 at [18] and Applications by APESMA [2023] FWCFB 137 at [31] .
Printed by authority of the Commonwealth Government Printer
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