Windolf Farms Pty Ltd T/A Windolf Farms

[2024] FWCFB 200

[2024] FWCFB 200 [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

(AG2023/4617)

Agricultural industry
DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT SLEVIN DEPUTY PRESIDENT GRAYSON	SYDNEY, 5 APRIL 2024

Application to extend the default period for Windolf Farms Pty Ltd Employee Collective Agreement 2006

1. Pursuant to subitem 20A(4) of Sch 3 to the Fair  Work  (Transitional  Provisions  and Consequential  Amendments)  Act  2009 (Cth), (the Transitional Act) Windolf Farms Pty Ltd T/A Windolf Farms (the Applicant) has applied to extend the default period for the Windolf Farms Pty Ltd Collective Agreement 2006 (the Agreement) until 30 June 2024.

1. 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 application was made after the notification time for the proposed enterprise agreement.

1. 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 where bargaining for a replacement agreement is made.

1. 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.

1. As the Full Bench observed in Suncoast Scaffolding Pty Ltd[2] 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.[3]

1. A Statement was provided by Sharron Windolf, General Manager of the Applicant in support of the application. The Applicant is a family-owned agricultural business that operates a farm, including the production, packing and transport of vegetables. It employs approximately 62 casual employees and 28 permanent employees. It commenced bargaining for a replacement agreement in September 2023.

1. The Applicant submits that there is a significant degree of complexity relative to the size and operations of the Applicant's business that is associated with bargaining for the Applicant's Proposed Agreement. This is because of the relative size of the Applicant's workforce, the number of casual employees and pieceworkers, the inherently seasonal nature of the Applicant's business, the number of Modern Awards that are relevant to the bargaining, and the significantly different terms and conditions which are contained in each of these Modern Awards.

1. Ms Windolf estimates that it will take until June 2024 for the Applicant to complete the consultation and bargaining process, including to meet and negotiate with any designated Bargaining Representatives, issue the draft version of the Applicant's Proposed Agreement and supporting explanatory materials, conduct votes and then seek approval in the Fair Work Commission.

1. The Applicant submits that it is in similar circumstances to the applicants in KJ Family Trust & The Trustee for the WJ Family Trust t/a Taylor Family Produce (Taylor Family Produce)[4] and Application by Tinmarl Pty Ltd as Trustee for R&M Patane Family Trust t/as North Queensland Golden Fruit (Tinmarl)[5] who, like the Applicant, are in the agricultural industry.

1. In Tinmarl the applicant was granted an extension of its agreement until 30 April 2024. However the circumstances in Tinmarl can be distinguished from the current application because in in Tinmarl bargaining for a replacement agreement was complicated by the fact that the seasonal workers were engaged under a migrant labour scheme and were not available to negotiate a replacement agreement prior to the harvest season which commenced in December 2023. We note that these or similar circumstances do not arise in the current application.

1. In Taylor Family Produce, the applicant commenced bargaining on 31 August 2023 after a three-month seasonal gap and was granted an extension of its agreement until 7 May 2024. The applicant in that case provided evidence that the seasonal gap took place during June, July, and August, when many employees take leave. In the current application, Ms Windolf has provided evidence that Applicant has been aware of the changes the legislation since December 2023, however, it has been difficult to commence bargaining sooner given the inherently seasonal nature of the Applicant’s business. Unlike the applicants in Tinmarl and Taylor Family Produce, Ms Windolf has not provided any specific evidence about the dates that the season(s) for the Applicant’s business commence and end so the basis of her estimation that the replacement agreement will not be finalised until June 2024 is unclear. Without such evidence we are not prepared to grant an extension until 30 June 2024 as sought by the Applicant.

1. Taking into account the evidence and submissions before us, we consider that an extension until 17 May 2024 is sufficient time for a replacement agreement to be made and approved. This is in effect 8 months after bargaining for a new agreement commenced.

1. Pursuant to item 20A(4) of Sch 3 to the Transitional Act, we order that the default period for the Agreement is extended until 17 May 2024.

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

DEPUTY PRESIDENT

[1] [2023] FWCFB 122.

[2] [2023] FWCFB 105 at [18].

[3] See Suncaost Scaffolding Pty Ltd [2023] FWCFB 105 at [18] and Applications by APESMA [2023] FWCFB 137 at [31] .

[4] [2023] FWCFB 166.

[5] [2023] FWCFB 124.

Printed by authority of the Commonwealth Government Printer

<AC302212  PR773228>