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Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Sch 3, Item
20A(4)—Application to extend default period agreement‑based transitional instrument
Paul Anthony Lebsandft
(AG2023/4054)
Peter Gerald Bastian
(AG2023/4177)
Coal industry
DEPUTY PRESIDENT WRIGHT
DEPUTY PRSIDENT ROBERTS
DEPUTY PRESIDENT SLEVIN
SYDNEY, 18 JANUARY 2024
Application to extend the default period for Australian Workplace Agreements between Paul
Anthony Lebsandft and New Acland Coal and Peter Gerald Bastian and New Acland Coal
[1] Paul Anthony Lebsandft and Peter Gerald Bastian (Applicants) have applied to extend
the default periods for individual agreement-based transitional instruments. The applications
incorrectly identified the Agreements as Division 2B State employment agreements which are
regulated by Schedule 3A of the Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009 (Cth) (Transitional Act). The correct characterisation of the Agreements
is that they are individual based transitional agreements regulated by Schedule 3 of the
Transitional Act. We will consider the applications to extend the default period as applications
under Schedule 3. The applications seek to extend the default period for the Agreements for 4
years until 6 December 2027.
[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 that period for up to four
years in prescribed circumstances. The agreements to which these provisions apply are known
as zombie agreements. The main features of item 20A of Schedule 3 are described in detail in
the Full Bench decision in Suncoast Scaffold Pty Ltd (Suncoast)1 and we rely upon what is said
in that decision.
[3] The applications are made on the basis that the Applicants would be better off overall if
the Agreements applied than if the Award applied. Subitem 20A(6) of Schedule 3 requires the
Commission to extend the default period if Subitems, (7), (8) or (9) applies and it is appropriate
in the circumstances to do so. Subitem (8) applies if the application relates to an individual
agreement-based transitional instrument, the employee covered by the agreement would be an
award covered employee if the agreement were a collective agreement-based transitional
[2024] FWCFB 8
DECISION
AUSTRALIA FairWork Commission
[2023] FWCFB 8
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instrument, and it is likely that at the time of the application the employee would be better off
overall if the agreement applied rather than the relevant award.
[4] We are satisfied that subitem (8) applies to each of the applications as; (a) the
Agreements are individual agreement-based transitional instruments, (b) the employees would
be award covered employees if the Agreements were collective agreement-based transitional
instruments and (c) the rates of pay are far in excess of the Award.
[5] The circumstances pertaining to the Applicants is that they work for New Acland Coal
Pty Ltd (NAC). NAC does not oppose an extension of the default period for the Agreements
but does oppose the length of the extensions sought. The Applicants are remunerated in
accordance with the Agreements and NAC does not dispute that the Applicants are better off
overall under the Agreements compared to the relevant Modern Award, which is the Black Coal
Mining Industry Award 2020 (Award). However, save for the rates of pay and a small number
of other benefits, NAC otherwise applies the terms and conditions of a collective agreement,
the New Acland Coal Enterprise Agreement 2019, to the Applicants. The remuneration under
the Agreements is in the order of $5,000 per annum higher under the Agreements than the
collective agreement.
[6] NAC is currently negotiating a replacement collective agreement which it has been
negotiating with employees, including the Applicants, since July 2023. NAC contends that any
extension of the Agreements should be until the replacement agreement is finalised. We find
that it is appropriate in these circumstances to extend the default period of the Agreements to
allow the negotiations to be finalised.
[7] Subitem (4) provides that the Commission may extend the default period for a period of
no more than 4 years. The Commission is given a discretion to determine the length of the
extension. As we have found that it is appropriate to extend the Agreements in circumstances
where the Applicants are engaged in negotiations for a replacement enterprise agreement, we
are of the view that the extension should be sufficient to allow those negotiations to be
completed. The negotiations have been going since July 2023. There is no indication from the
parties that the bargaining is proving to be complex or otherwise problematic. We are of the
view that they should be completed by July 2024. Consequently, we will extend the default
period of the Agreements until 6 July 2024.
[2023] FWCFB 8
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[8] An order extending the default period for the Agreement until 6 July 2024 will be
published separately.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR770421
1 [2023] FWCFB 105.
OF THE FAIR WORK L MISSION THE SEA
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb105.pdf
