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Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3A, Item 26A(4) - Application to extend default period for Division 2B State
employment agreements
The Trustee for the K.J. Family Trust & The Trustee for the W.J. Family
Trust T/A Taylor Family Produce
(AG2023/1749)
TAYLOR FAMILY PRODUCE CERTIFIED AGREEMENT
[AG520289]
Agricultural industry
DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT ROBERTS
DEPUTY PRESIDENT SLEVIN
SYDNEY, 21 SEPTEMBER 2023
Application to extend the default period for the Taylor Family Trust Certified Agreement
[1] The Trustee for the K.J. Family Trust & The Trustee for the W.J. Family Trust t/a Taylor
Family Produce ABN 48 893 471 448 (Applicant) has applied under item 26A(4) of Schedule
3A to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
(Transitional Act) to extend the default period for the Taylor Family Trust Certified Agreement
(Agreement) to 10 August 2024.
[2] The Agreement was approved on 23 December 2009 under s.156 of the Industrial
Relations Act 1999 (Qld). It is a Division 2B State employment agreement for the purposes of
item 5 of Schedule 3A of the Transitional Act. It is also a collective agreement-based
transitional instrument for the purposes of the Transitional Act. It has not terminated and so
continues in operation.
[3] The Transitional Act was amended by the Fair Work Legislation Amendment (Secure
Jobs, Better Pay) Act 2022 (Amendment Act) to provide for the automatic termination of all
remaining transitional instruments. The Amendment Act refers to transitional instruments as
‘zombie’ agreements. Pursuant to items 26A(1) and (2) of Schedule 3A to the Transitional Act,
Division 2B State employment agreements will terminate on 6 December 2023 unless extended
by the Commission.
[4] Item 26A is relevantly in identical terms to item 20A of Sch 3 to the Transitional Act,
which is concerned with the automatic sunsetting of, and applications for, extension of the
default period for agreement-based transitional instruments. The main features of item 20A of
Sch 3 are described in detail in the Full Bench decision in Suncoast Scaffold Pty Ltd1, and that
analysis applies equally to item 26A of Sch 3A. It is not necessary to repeat it here.
[2023] FWCFB 166 [Note: A copy of the zombie agreement to which this
decision relates (AG520289) is available on our website.]
DECISION
AUSTRALIA FairWork Commission
http://www.austlii.edu.au/au/legis/cth/num_act/fwlajbpa2022516/
http://www.austlii.edu.au/au/legis/cth/num_act/fwlajbpa2022516/
http://www.austlii.edu.au/au/legis/cth/num_act/fwlajbpa2022516/
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb166.pdf
https://www.fwc.gov.au/documents/agreements/approved/ag520289.pdf
[2023] FWCFB 166
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[5] Under subitem (6) of item 26A, upon application, the Commission is required to extend
the default period for an agreement-based transitional instrument for a period of no more than
four years if the Commission is satisfied that:
(a) Subitem (7), (8) or (9) applies and it is otherwise appropriate in the circumstances to
do so; or
(b) it is reasonable in the circumstances to do so.
[6] The application is advanced under subitem 6(b) on the basis that it is reasonable in the
circumstances to extend the default period to 10 August 2024 for three reasons. First, the unique
circumstances of the Applicant and its business. Second, it proposes to replace the Agreement
with an enterprise agreement and needs time to do so. Third, the employees support the
extension as the impact of terminating the agreement mid-way through the growing season
would be unfair.
The Applicant’s case
[7] The Applicant provided a statement of Raymon Taylor, its Managing Director, and
written submissions.
[8] Mr Taylor describes the Applicant as a multi-generational, family-owned farming
business with roots dating back to 1914. The business is located primarily in Queensland and
New South Wales, specialising in growing various vegetables such as lettuce, Chinese cabbage,
celery, cauliflower, and silverbeet. The operations vary according to seasonal conditions. For
example, planting and harvesting cycles occur at various times throughout the year across the
separate locations. The farms operate year-round and employ approximately 15 full-time, 5
part-time, 19 casual staff, and up to 60 seasonal workers during peak harvesting periods. There
is a seasonal gap during June, July, and August, leading to approximately six weeks of reduced
work. Employees bank extra hours during peak seasons to take time off during periods of
reduced work in June, July, and August.
[9] The Applicant seeks an extension of the Agreement to allow it sufficient time to enter
into an enterprise agreement to replace the Agreement. An extension to 10 August 2024 is
sought and the Applicant asserts this will avoid disrupting operations during the negotiation
and approval of a replacement enterprise agreement. The extension sought is until after the end
of the growing season in June 2024. The Applicant submits that the negotiation and transition
to a new enterprise agreement is expected to be complex, as multiple modern awards cover
various aspects of the business, including clerical work, horticulture, transport, and equipment
maintenance.
[10] The bargaining process commenced on 31 August 2023, and the Applicant has
appointed an employment lawyer as its bargaining representative. A bargaining meeting with
employees is scheduled to occur before the end of September 2023.
Consideration
[11] In Suncoast Scaffolding Pty Ltd the Full Bench described the ‘reasonable’ criterion in
applications to extend default periods as follows2:
[2023] FWCFB 166
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[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.
[12] The Commission is required to grant an extension to the default period if the conditions
of subitem 6(b) are satisfied. However, there is a discretion as to the length of the extension,
subject to the limitation that the extension cannot be for more than four years.
[13] The circumstances in this matter are similar to the circumstances considered in
Application by Tinmarl Pty Ltd as trustee for R & M Patane Family Trust trading as North
Queensland Golden Fruit3 where the Full Bench was satisfied that an extension of the default
period was reasonable to ensure that applicant could make arrangements to secure seasonal
labour for the upcoming mango harvesting season whilst also accommodating negotiations for
a replacement agreement. There is some difference, because in that matter bargaining for a
replacement agreement was complicated by the fact that the seasonal workers were Pacific
Islanders who were engaged under a migrant labour scheme and were not available to negotiate
a replacement agreement prior to the harvest season.
[14] In this matter we are of the view that, for the reasons advanced by the Applicant, it
would be reasonable to extend the default period to allow a replacement agreement to be
negotiated. The Applicant’s operations do involve a level of complexity with employees
working across the coverage of a number of modern awards. The considerable number of
seasonal workers who are covered by the Agreement is also a factor favouring an extension.
Whilst it was conceivable that negotiations could have occurred earlier this year, the June, July
and August off season meant those seasonal workers may not have been available to finalise a
replacement agreement.
[15] We do not believe that a 9-month extension is necessary to finalise a replacement
enterprise agreement. Indeed, to accommodate the seasonal nature of the work, a replacement
agreement should be finalised before the slow period commencing in June 2024. This will
ensure that seasonal workers are available to participate and vote for the replacement
agreement. We further note that the appointment of a lawyer practicing in employment law may
assist in finalising bargaining in the time available. The Commission is also available to assist
in bargaining pursuant to s.240 of the Fair Work Act 2009 should this be necessary. In the
circumstances we consider an extension of 6 months to 7 May 2024 is appropriate.
[16] Accordingly, the default period for the Agreement is extended until 7 May 2024. An
order to give effect to this decision will be published separately.
[17] The Agreement is published, in accordance with item 20A(10A)(c) of Sch 3 to the
Transitional Act, as an annexure to this decision.
[2023] FWCFB 166
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DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
AC324264 PR766478
1 [2023] FWCFB 105
2 id
3 [2023] FWCFB 124
OF THE FAIR WORK L MISSION THE SEA
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb105.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb124.pdf
