1
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch 3, Item 20A(4)—Application to extend default period for agreement-based transitional
instruments
Nine2Three Employment Solutions Pty Ltd t/a CIRCLE Recruitment &
HR
(AG2023/1009)
NINE2THREE EMPLOYMENT SOLUTIONS PTY LTD EMPLOYEE
COLLECTIVE AGREEMENT 2007
Clerical industry
JUSTICE HATCHER, PRESIDENT
DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT SLEVIN
SYDNEY, 17 JULY 2023
Application to extend the default period for the Nine2Three Employment Solutions Pty Ltd
Employee Collective Agreement 2007.
[1] Nine2Three Employment Solutions Pty Ltd (Nine2Three) has made an application
pursuant to item 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009 (Cth) (Transitional Act), to extend the default period for the Nine2Three
Employment Solutions Pty Ltd Employee Collective Agreement 2007 (Agreement).1 The
Agreement is an agreement-based transitional instrument to which Sch 3 applies, since it was
made as an collective workplace agreement under the Workplace Relations Act 1996 (Cth).
[2] Item 20A of Sch 3 to the Transitional Act provides for the automatic sunsetting of
agreement-based transitional instruments by the end of the default period on 6 December 2023,
subject to the capacity to apply to the Commission for an extension of the default period for up
to four years in prescribed circumstances. The main features of item 20A of Sch 3, and
principles concerning its proper construction and application, are described in detail in the Full
Bench decision in Suncoast Scaffold Pty Ltd,2 and we rely upon without repeating what is said
in that decision.
[3] Apart from covering employees of Nine2Three, the Agreement does not specify in
express terms whom it covers. However, it may be inferred from clauses 2, 4.2, 4.4, 5.1 and
Schedule A that the Agreement was intended to apply to on-hired employees performing
temporary clerical work assignments who would otherwise have been covered by the State or
federal clerical awards then operating in each State and Territory (which are set out in the
definition of ‘Award’ in clause 2). Clause 3.2 of the Agreement provides that ‘All Protected
[2023] FWCFB 126 [Note: A copy of the zombie agreement to which this
decision relates (AC309616) is available on our website.]
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb126.pdf
https://www.fwc.gov.au/documents/agreements/approved/ac309616.pdf
[2023] FWCFB 126
2
Allowable Award Matters as defined are expressly excluded from operation by this
Agreement’. Clause 2 defines ‘Protected Allowable Award Matters” to mean:
Are as defined in s 354 of the [Workplace Relations] Act and include provisions of the Award
dealing with rest breaks, incentive based payments and bonuses, annual leave loading, State and
Territory specific public holidays, allowances, loadings for overtime and shift work, penalty
rates, outworker conditions and any other matters specified in the Regulations.
[4] The rates of pay are set out in Schedule A to the Agreement, which provides for hourly
rates of pay for permanent full-time, permanent part-time and casual employees in each State
and Territory. The casual hourly rates are 20 per cent higher than for permanent full-time
employees, implying a 20 per cent casual loading. All rates are significantly lower than under
the modern award which now covers employees under the Agreement, the Clerks—Private
Sector Award 2020 (Award). Clause 9.1 of the Agreement provides that the rates shall be ‘as
adjusted by the Australian Fair Pay and Conditions Standard from time to time’, but the
Australian Fair Pay and Conditions Standard was abolished in 2009. Item 13 of Sch 9 to the
Transitional Act has the effect that the base rates under the Agreement are to be treated as not
less than the base rates under the Award. Clause 8.1 of the Agreement provides that ordinary
hours of work shall not exceed 38 per week averaged over 52 weeks. Clause 8.4 provides for
overtime to be paid at time and a half for the first two hours and double time thereafter, but
clause 8.5 allows employees to ‘request or agree’ to work additional hours and be paid their
ordinary rate of pay. The Agreement makes no provision for weekend penalty rates, nor does it
provide for an annual leave loading. Clause 5.6 purports to declare that the employee agrees
not to accept any offer of employment from a client or former client of the employer ‘to whom
the Employees had been introduced’ for a period of six months following the cessation of the
employee’s assignment.
[5] The grounds of the application are as follows:
Nine2Three is a very small recruitment and HR consultancy. This agreement applies to our on-
hired workers under the [C]lerks [A]ward only.
We have a headcount of 9 internal staff and a turn over of less than $1 mil. We have been
severely affected in the last 3 years with the pandemic, inability to hold staff; inability to recruit
new staff; client base diminishing due to current economic conditions – increase in interest rates
and wages demands from staff. We are in a highly precarious position.
If we do not continue to operate, our 10 staff will all become unemployed and our on-hired staff
may lose their jobs also. We use our ECA to minimise our administration and are at all times
compliant with the NES and current pay rates.
Sunsetting of our agreement will add further burden to our already tight situation.
We will have to engage in all new contracts, as well as new processes in our HR system to
generate all our documents that refer to our ECA – including our payroll system.
We have no unionised workforce, we treat all our workers exceptionally well, we are compliant
with the Fair Work Act in all aspects.
We cannot afford the legal costs to update our agreement.
[2023] FWCFB 126
3
Please grant this extension, so you do not place another small business under further stress than
we are already trying to cope with.
[6] The application does not, in terms, identify whether it is advanced under paragraph (a)
or (b) of subitem (6) of item 20A, nor in respect of paragraph (a) does it contend in terms that
subitem (7), (8) or (9) is applicable. At the hearing on 30 June 2023, Nine2Three contended
that employees were better off overall under the Agreement than under the Award. This was
said to be on the basis that the wage rates paid to employees covered by the Agreement are
increased in line with increases to the Award rates, and are set so that they are ‘slightly’ or
‘minimally’ higher than the Award rates. However, that appears to be an administrative practice
adopted by Nine2Three; it does not arise through the operation of the terms of the Agreement.
As earlier stated, the rates actually provided for in the Agreement are below those in the Award,
and the base rates for which the Agreement provides are only equal to the base rates in the
Award by operation of item 13 of Sch 9 to the Transitional Act. Other terms of the Agreement
are less beneficial for employees than under the Award. Accordingly, we could not be satisfied
that subitem (9) applies on the basis that the employees covered, viewed as a group, would be
better off overall if it applied to them than if the Award applied. There is no evidence that
subitem (7) applies, and subitem (8) is not relevant.
[7] Accordingly, the application only succeeds if we are satisfied under subitem (6)(b) that
it is reasonable in the circumstances to extend the default period. The case advanced by
Nine2Three, as explained at the hearing, was that it needs an extension because it currently
faces difficult commercial circumstances. Nine2Three is a labour hire and recruitment business,
and rising interest rates have caused a reduction in demand for labour while a lack of recruits
to fill roles has meant that it is more difficult, time-consuming and expensive to supply labour.
It was submitted that Nine2Three is a small business which is struggling to survive, and it was
difficult in the current environment to deal with the termination of the Agreement because it
would necessitate retraining the staff responsible for supplying on-hire labour in a new
instrument at a time when the focus was on the survival of the business.
[8] We are satisfied, on the basis of the matters advanced, that it would be reasonable in the
circumstances to extend the default period with respect to the Agreement. As a result of this
conclusion, we are required under subitem (6) to extend the default period; however, we have
a discretion as to the length of the extension (subject to the limitation of a four-year maximum
extension) and we are not bound to grant the period of extension sought in the application.3 In
its application, Nine2Three sought the maximum extension allowable of four years. However,
at the hearing, it was submitted that ‘another 12 months would be perfect’. We are not minded
to grant a lengthy extension for the principal reason that it is likely that the Agreement is less
beneficial to the employees covered by it than the Award. We consider that an extension of the
default period until 1 July 2024 will provide Nine2Three with a reasonable period to take the
administrative steps necessary to apply the Award to its on-hire employees.
[9] An order to give effect to this decision will be published separately. The Agreement is
published, in accordance with subitem (10A)(c), as an annexure to this decision.
[2023] FWCFB 126
4
PRESIDENT
Printed by authority of the Commonwealth Government Printer
AC309616 PR764282
1 Nine2Three’s application, as filed on 8 April 2023, incorrectly indicated that the application was made pursuant to item 30(4)
of Sch 7 to the Transitional Act. On this error being identified, Nine2Three amended its application to identify the correct
provision at the initial hearing on 30 June 2023.
2 [2023] FWCFB 105.
3 Ibid at [18].
THE FAIR WORK FAI COMMISSION THE
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb105.pdf
