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Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch 7, Item 30(4)—Application to extend default period for enterprise agreement made during
the bridging period
Application by Tinmarl Pty Ltd as trustee for R & M Patane Family Trust
trading as North Queensland Golden Fruit
(AG2023/1864)
TINMARL ENTERPRISE AGREEMENT 2009
[AE872615]
Wholesale and retail trade
JUSTICE HATCHER, PRESIDENT
DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT SLEVIN
SYDNEY, 12 JULY 2023
Application to extend the default period for the Tinmarl Enterprise Agreement 2009.
Introduction
[1] On 12 June 2023, Tinmarl Pty Ltd (as trustee for R & M Patane Family Trust trading as
North Queensland Golden Fruit) (Tinmarl) made an application under subitem 30(4) of Sch 7
to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)
(Transitional Act) to extend the ‘default period’ for the Tinmarl Enterprise Agreement 2009
(Agreement). The application seeks to extend the default period for two years to 6 December
2025.
[2] The Agreement was made in 2009 in the ‘bridging period’ as defined in the Transitional
Act. It continues to operate. It is a ‘zombie agreement’ for the purposes of item 30 of Sch 7 to
that Act and it will cease to operate on 6 December 2023 unless extended by the Commission.
[3] The main aspects of the statutory framework for applications for the extension of zombie
agreements were detailed in the recent Full Bench decision in Suncoast Scaffold Pty Ltd.1 The
Full Bench there dealt with an application to extend a ‘WR Act agreement’ under item 20A of
Sch 3 to the Transitional Act. The terms of item 20A of Sch 3 are relevantly the same as item
30 of Sch 7. The Full Bench’s analysis of those provisions applies equally to item 30 of Sch 7
and it is not necessary to repeat it here.
[4] Put briefly, the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022
(Cth) amended the Transitional Act to add include item 30 in Sch 7. Item 30 provides for the
[2023] FWCFB 124 [Note: A copy of the zombie agreement to which this
decision relates (AE872615) is available on our website.]
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/agreements/approved/ae872615.pdf
[2023] FWCFB 124
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sunsetting of remaining enterprise agreements made during the bridging period on 6 December
2023 unless extended by the Commission. Subitem 30(6) provides that where an application is
made under subitem 30(4) for the period to be extended, the Commission must extend the
default period for a period of no more than four years if either:
(a) subitem (7) or (8) applies and it is otherwise appropriate in the circumstances to do so; or
(b) it its reasonable in the circumstances to do so.
[5] Subitem (7) applies where the application is made at or after the notification time for a
proposed enterprise agreement that will cover the employees and bargaining for the proposed
enterprise agreement is occurring. Subitem (8) applies if it is likely relevant employees covered
by the agreement would be better off overall if the agreement continued to apply.
[6] In the present matter, the applicant does not contend that either subitem (7) or (8)
applies. Rather the applicant relies on paragraph (b) of subitem (6). It contends that it is
reasonable in the circumstances to extend the default period for two years.
[7] In a document filed with the application, Tinmarl sets out the circumstances confronting
its business should the Agreement cease to operate. The application was listed for directions on
16 June 2023, at which Tinmarl provided further information about its operations. The
Australian Workers’ Union (AWU) appeared and opposed the application. The parties were
content for the matter to be determined on the papers and the information provided at the
directions hearing.
Tinmarl’s circumstances
[8] Tinmarl operates a mango farm at Mareeba in Far North Queensland. The picking
season for mangoes occurs in a short window of six to eight weeks commencing in December
or January each year. Tinmarl describes its core seasonal workforce as 10 employees who are
engaged under a Commonwealth government seasonal worker program. Those employees are
Pacific Islanders. They return home when the work is done. The seasonal worker program
requires that Tinmarl make offers of employment underpinned by an industrial instrument that
applies for the duration of the employment. Those offers must be made in August 2023. The
workers employed under the scheme are not available to bargain for a replacement enterprise
agreement before the automatic termination of the Agreement on 6 December 2023.
[9] During the upcoming season Tinmarl intends to bargain for an enterprise agreement to
replace the Agreement. It is expected the workers will return home at the end of the season
which is anticipated to be April 2024.
[10] In support of the application Tinmarl contends that if the Agreement ceases to operate
during the upcoming season then it will be unable to meet the requirement of the seasonal
worker scheme that it specify an industrial instrument to apply to the work for the duration of
the upcoming season. This is because two instruments will apply, the Agreement until 6
December 2023 and the Horticulture Award 2020 after that time. It also contends that as its
seasonal workers are not available to bargain for a replacement agreement before December
2023 it will be unable to have a replacement agreement in place to meet the scheme’s
requirement.
[2023] FWCFB 124
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[11] The AWU opposes the application on the basis that there is no reason Tinmarl cannot
enter into a replacement agreement.
Consideration
[12] In Suncoast Scaffold Pty Ltd the Full Bench described the ‘reasonable’ criterion in item
20A(6)(b) of Sch 3 to the Transitional Act in this way:
[17] Subitem (6)(b) of item 20A constitutes an independent pathway to the grant of an extension.
The ‘reasonable’ criterion in the subitem should, in our view, be applied in accordance with the
ordinary meaning of the word – that is, ‘agreeable to reason or sound judgment’. Reasonableness
must be assessed by reference to the ‘circumstances’ of the case, that is, the relevant matters
and conditions accompanying the case. Again, a broad evaluative judgment is required to be
made.
[13] Item 30(6)(b) is in the same terms.
[14] For the reasons which follow, we are satisfied that in the circumstances of this case it is
reasonable to extend the default period for the Agreement. We will not, however, extend the
period for the two years sought but will extend it to 30 April 2024.
[15] We are satisfied that the timing of the sunsetting of the Agreement will unreasonably
impact on Tinmarl’s operations. This is so because if the Agreement ceases to operate while
the picking season is underway the employment of the employees will no longer be underpinned
by the industrial instrument identified for the purpose of meeting the requirements of the
seasonal worker scheme. Extending the period will permit Tinmarl to make offers of
employment in accordance with the scheme with confidence that it is in this regard compliant
with the scheme. It is reasonable to extend the default period to enable Tinmarl to participate
in the scheme.
[16] Contrary to the submission of the AWU we do not believe it is possible for Tinmarl to
enter into an enterprise agreement to replace the Agreement prior to making offers to the
seasonal workers. Tinmarl explained that the workers live in the Pacific Islands in remote places
with limited access to communications. While it may have been possible for an enterprise
agreement to be made and approved during the last picking season, that did not occur. It may
have been preferable that it did, but we do not consider that matter outweighs the reasonableness
of granting an extension.
[17] Tinmarl indicated that it has commenced preparations to negotiate a replacement
agreement during the upcoming season. We consider that a sensible course and consider that in
the circumstances an extension which runs to the end of this season is appropriate. We consider
that 30 April 2024 is an appropriate date for this purpose.
[18] One further issue raised by the AWU was the level of wages received under the
Agreement. While the question of whether the employees are better off overall is not an express
consideration under item 30(6)(b), we are of the view the impact of the extension on the terms
and conditions of the employees does fall within relevant circumstances to be considered under
the subitem. The Agreement is a comprehensive agreement and provides at clause 3.4 that wage
[2023] FWCFB 124
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adjustments be made in accordance with minimum wage movements. While it is preferrable
that agreements be negotiated to reflect contemporary standards, and Tinmarl proposes to
embark on that process in the upcoming picking season, we consider that this issue does not
outweigh the reasonableness of granting an extension.
[19] The default period for the Agreement is extended until 30 April 2024. An order to give
effect to this decision will be published separately. The Agreement is published, in accordance
with item 30(9A)(c) of Sch 7 to the Transitional Act, as an annexure to this decision.
PRESIDENT
Appearances:
N Wilson and M Patane for the applicant.
G Taylor for The Australian Workers’ Union.
Hearing details:
2023.
Video using Microsoft Teams:
16 June.
Printed by authority of the Commonwealth Government Printer
PR764164
1 [2023] FWCFB 105 at [3]-[18].
THE FAIR WORK FAI COMMISSION THE
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr764164.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb105.pdf
