1
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 7, Item 30(4) - Application to extend default period for enterprise agreements made
during the bridging period
Australian Workers' Union, The
(AG2023/3451)
BRISBANE CONVENTION AND EXHIBITION CENTRE UNION
COLLECTIVE AGREEMENT 2009
[AC327781]
Amusement, events and recreation industry
DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT ROBERTS
DEPUTY PRESIDENT SLEVIN
SYDNEY, 17 NOVEMBER 2023
Application to extend the default period for the Brisbane Convention & Exhibition Centre
Union Collective Agreement 2009
[1] The Australian Workers’ Union (AWU) has applied, pursuant to item 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 Brisbane Convention & Exhibition
Centre Union Collective Agreement 2009 (Agreement).
[2] The application seeks to extend the Agreement until 30 April 2024. ASM Global
(Convex) Pty Ltd trading as The Brisbane Convention & Exhibition Centre (ASM Global),
the employer covered by the Agreement, supports the application.
[3] The Agreement was made during the ‘bridging period’ as defined1 in the Transitional
Act and approved under the Fair Work Act 2009 (Cth) (FW Act). Applications for the
extension of agreements made during the bridging period are required to be made under item
30(4) of Sch 7 of the Transitional Act.
[4] Agreements made during the bridging period are one form of agreement that is
commonly referred to as a zombie agreement. The main aspects of the statutory framework
for applications for the extension of the default period for zombie agreements were detailed in
the Full Bench decision in Suncoast Scaffold Pty Ltd.2 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.
[2023] FWCFB 213 [Note: A copy of the zombie agreement to which this
decision relates (AC327781) is available on our website.]
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb213.pdf
https://www.fwc.gov.au/documents/agreements/approved/AC327781.pdf
[2023] FWCFB 213
2
[5] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth)
(SJBP Act) amended the Transitional Act to include item 30 in Sch 7. Item 30 provides for
the sunsetting of any remaining enterprise agreements made during the bridging period on 6
December 2023 unless that deadline is 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 is reasonable in the circumstances to do so.
[6] 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 that as at the time the
application is made, the relevant employees covered by the Agreement, viewed as a group,
would be better off overall if the Agreement applied to the employees than if the relevant
modern award referred to in subitem (9) applied. The relevant modern award in this case is
the Amusement, Events and Recreation Award 2020 (the Award).
[7] The application is advanced on the basis that subitems (7) or (8) apply and it is
otherwise appropriate in the circumstances to extend the default period, or alternatively, that it
is reasonable in the circumstances to extend the default period of the Agreement. We turn first
to consider the contention that subitem (7) applies.
[8] The Full Bench in ISS Health Services Pty Ltd3 described the three requirements for
subitem (7) to apply. The first is the requirement that the application is made at or after the
‘notification time’ for a proposed agreement as defined in s.173(2) of the FW Act. The second
is that the proposed agreement must cover the same or substantially the same group of
employees as the zombie agreement. The Full Bench stated that this could be established by
comparing the Notice of Employee Representational Rights (NERR) for the proposed
agreement to the coverage clause of the zombie agreement. The third is that bargaining for the
proposed agreement must be occurring.
[9] The parties advised the Commission that on 16 June 2023, ASM Global issued a
NERR to employees notifying of its intention to negotiate a new agreement. A copy of the
NERR was provided to the Commission. The NERR refers to a proposed enterprise
agreement covering employees who would otherwise be covered by the Agreement.
[10] After the NERR was issued, bargaining commenced with the AWU and employee
bargaining representatives. The first bargaining meeting took place on 6 July 2023 and
bargaining continued to occur after that date. In total, eight meetings have taken place.
[11] The NERR shows that the company agreed to bargain or initiated bargaining on 16
June 2023 and that there was a notification time for a proposed agreement. The application for
extension of the Agreement was filed after the notification time for a proposed agreement. We
note also that the group of employees covered by the proposed agreement, as described in the
NERR, is the same as the coverage of the Agreement. We consider that the first two
preconditions in subitem (7) as identified in ISS Health Services Pty Ltd have been satisfied.
[2023] FWCFB 213
3
However, a question has arisen as to whether bargaining for a proposed agreement is
occurring.
[12] On 8 November 2023 the Commission was advised by the parties that a vote on a
proposed new agreement had taken place and that a majority of employees that would be
covered by the proposed agreement had voted to approve the agreement. ASM Global advised
that it intended to file an application for the approval of the proposed agreement on the same
date. The AWU advised that it intended to raise certain issues in any approval proceedings.
An application for approval of the proposed agreement was filed with the Commission on 8
November 2023. At the time of this decision, the application for approval had not been
determined.
[13] Given that a vote had taken place to approve a new agreement after the lodgement of
the present application, the Commission sought the views of the Applicant and ASM Global
as to whether the application to extend the default period was pressed and if so, whether ASM
Global continued to consent to the application. The parties affirmed that the application was
pressed and ASM Global did continue to support the application.
[14] Various decisions of the Commission have dealt with the question of whether
bargaining comes to an end when an agreement is ‘made’ pursuant to s.182(1). In AMWU v.
Broadspectrum (Australia) Pty Ltd4 the majority of the Full Bench said:
The parties’ submissions in this appeal were premised on two propositions about
which they did not disagree. The first was that once an agreement is “made” pursuant
to s 182(1), the bargaining process that gave rise to that agreement comes to an end.
That proposition is derived from a decision of a single member of the Commission in
AMIEU v Coles Supermarkets Australia Pty Ltd. That specific proposition has not yet
been endorsed judicially or at the Full Bench level, although we note that in the Full
Bench decision in Uniline Australia Limited the majority said that bargaining ended
upon lodgement of an application for approval of an agreement (presumably one
“made” in accordance with s 182 rather than merely a purported agreement). For the
purpose of this appeal we shall assume, without deciding, that the proposition is
correct. (footnotes omitted)
[15] It is not necessary or desirable for us to reach a concluded view as to whether in this
case, bargaining is no longer occurring as a result of an agreement being ‘made’ pursuant to
s.182(1). An application for approval of the proposed agreement is presently before the
Commission. The AWU has indicated that it may take issue with the approval application. In
the course of determining the application for approval it will be necessary for the Commission
to consider whether the statutory prerequisites for approval, including whether an agreement
has been made under s182, have been met. In doing so the Commission will have the benefit
of evidence and submissions which directly deal with those issues. We consider it appropriate
in the circumstances to leave those issues to be dealt with in the approval application rather
than deal with them here. We turn then to consider whether it is reasonable in the
circumstances to extend the default period.
[16] In this matter bargaining for a new agreement has taken place and an application has
been made for the approval of an agreement to replace the zombie agreement. There is some
prospect that that application may not be dealt with to finality before the 6 December
deadline. If that is the case and the replacement agreement is ultimately approved, there
[2023] FWCFB 213
4
would be a short period where the parties would revert to coverage by the award before the
new agreement comes into operation. Employees may be temporarily worse off. Both parties
submitted that employees are better off under the Agreement than the Award. The AWU
provided evidence that wage rates payable under the Agreement were higher than those under
the Award and both parties referred to various conditions of employment in the Agreement
that were superior or additional to what was contained in the Award.
[17] We are satisfied that it is reasonable in the circumstances to extend the default period
for the Agreement. The application is made by consent. The AWU and ASM Global have
demonstrated a genuine commitment to negotiating a replacement agreement. Given the
various benefits in the Agreement, it would also be unfair for the employees if their terms and
conditions were to revert to the relevant award for a brief period between either the approval
of the agreement now before the Commission or the finalisation of another agreement.
[18] As we are satisfied that subitem 6(b) applies we are required to extend the default
period. As the Full Bench observed in Suncoast Scaffolding Pty Ltd5 the Commission has a
discretion as to the length of the extension, subject to the limitation that the extension cannot
be for 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.6 The extension sought by the AWU in the
application was until 30 April 2024.
[19] We have had regard to the history and current status of the bargaining process which
had resulted in an agreement being submitted to the Commission for approval.
[20] In all the circumstances we propose to grant the application and extend the default
period for this agreement until 30 April 2024 which, given the advanced status of the
negotiations, we consider will allow sufficient time for the parties to finalise another
replacement enterprise agreement if the proposed agreement is not approved.
[21] An order extending the default period for the Agreement to 30 April 2024 will be
published separately. The Agreement is published, in accordance with subitem (10A)(c), as an
Annexure to this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
AC327781 PR768380
1 Item 2, Part 1 of Schedule 1.
OF THE FAIR WORK L MISSION THE SEA
[2023] FWCFB 213
5
2 [2023] FWCFB 105.
3 [2023] FWCFB 122 at [4].
4 [2018] FWCFB 6556.
5 [2023] FWCFB 105 at [18].
6 See Suncoast Scaffolding Pty Ltd id and Applications by APESMA [2023] FWCFB 137 at [31].
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb105.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb122.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb6556.htm
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb105.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb137.pdf
