1
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch 3, Item 20A(4)—Application to extend default period enterprise agreement made during
bridging period
Application by Australian Workers’ Union
(AG2023/4089)
OZPAK COLLECTIVE AGREEMENT 2009
Wine industry
DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT ROBERTS
DEPUTY PRESIDENT SLEVIN
SYDNEY, 12 JANUARY 2024
Application to extend the default period for the Ozpak Collective Agreement 2009
[1] The Australian Workers’ Union (AWU) has applied, 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 Ozpak Collective Agreement 2009
(Agreement). The application seeks to extend the Agreement for a period of 12 months until 6
December 2024.
[2] The Agreement is a ‘collective agreement-based transitional instrument’ for the
purposes of item 2(5)(c)(i) of Sch 3.
[3] 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 Sch 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.
[4] The application is made under subitem (4) of item 20A of Sch 3 to the Transitional Act,
on the basis that the Commission can be satisfied under subitem (6)(a) that subitem (7), applies
and it is otherwise appropriate in the circumstances to do so. Subitem (7) applies if bargaining
for an enterprise agreement to replace the zombie agreement is occurring.
Background
[2024] FWCFB 4 Note: A copy the zombie agreement to which this decision
relates (AC325715) is available on our website.]
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/agreements/approved/AC325715.pdf
[2024] FWCFB 4
2
[5] The employer, Ozpak Pty Ltd (Ozpak) issued a Notice of Representational Rights
(NERR) to employees covered by the Agreement on 20 September 2023. The NERR proposed
bargaining for an agreement that will cover the same or substantially the same group of
employees as the zombie agreement.
[6] Bargaining commenced in October 2023 towards an enterprise agreement that will cover
the same, or substantially the same, employees that are covered by the Agreement. It is proposed
that a new agreement will cover 45 of the 54 employees currently covered by the Agreement.
The 9 employees who are not proposed to be covered are senior managers.
[7] The AWU is representing the employees in the negotiations. There are also a number of
employee bargaining representatives.
[8] Ozpak circulated a proposed agreement to employees and the AWU in October 2023.
The AWU also provided its log of claim in late October 2023. There were discussions about
the proposed agreement in October and November 2023. The AWU provided a list of 38 matters
that had been the subject of negotiations and included the status of those matter as of 14
November 2023. Of those, a number were agreed, others were to be the subject to further
discussions, but the majority were not agreed. Ozpak was yet to respond to the AWU wage
claim, and the AWU pointed to wages as a matter that will have a significant impact on the
course of the bargaining.
[9] If the Agreement is not extended the Wine Industry Award 2020, Manufacturing and
Associated Industries and Occupations Award 2020 and Clerks – Private Sector Award 2020
(the Awards) would apply. The AWU submits that the employees are better off under the
Agreement than the Awards. Ozpak submits that the employees would be better off on the
Awards. Ozpak has not provided the current rates of pay of employees. The rates in the
Agreement were over the award rates when the Agreement was approved, and the Agreement
required that the rates increase in accordance with the CPI on 1 July every year. The AWU
submits that while Ozpak has not provided it with the current rates, it believes that the
employees it represents are paid a minimum of $4.00 an hour above award rates. Ozpak does
not contend that the employees are not better off on the Agreement in terms of wages. Given
that concession and in the absence of Ozpak providing us with the rates paid under the
Agreement we accept the AWU’s submission that the Agreement rates are above the Award.
[10] Ozpak’s primary contention is that certain conditions are less than the equivalent Award
terms. It points in particular to weekend penalty rates, minimum hours for part time employees,
spread of ordinary hours, and some allowances being less than the equivalent allowances in the
Awards. The AWU points to a 200% penalty for all overtime, which, it says, would apply to
weekend work, as well as to better accident pay provisions, a 3 month probationary period, a
term requiring the reimbursement of expenses, wage performance review mechanisms, an
additional day for bereavement leave, and rights provided by training, equal opportunity and
anti-discrimination terms in the Agreement as other conditions that are better than conditions
provided for in the Awards.
[11] A 12-month extension of the default period for the Agreement is sought by the AWU to
ensure certainty over the terms and conditions for employees during the negotiations. The AWU
[2024] FWCFB 4
3
submit that all employee representatives support the extension of the default period for the
Agreement. Ozpak opposes the 12-month extension but supports a three month extension to
allow bargaining to be completed. The AWU submitted that if the Commission considered 12
months too long, then an 8-month extension would be appropriate.
Consideration
[12] The Full Bench in ISS Health Services Pty Ltd2 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 the proposed replacement agreement. Notification time is defined in
s.173(2) of the Fair Work Act 2009 (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 NERR for the proposed agreement
to the coverage clause of the zombie agreement. The third is that bargaining for the proposed
agreement has commenced.
[13] The application satisfies these three requirements, so subitem (7) applies. We must
therefore extend the default period under subitem (6)(a) if we consider it is appropriate to do
so. As negotiations have commenced and are progressing, we think it is appropriate in this case
that the industrial arrangements remain undisturbed while those negotiations take place. On the
material provided we accept that the employees would be better off if the Agreement continued
to apply while the negotiations run their course. We are also concerned that if the Agreement
were to terminate this would provide Ozpak with an advantage in the bargaining process as it
would give rise to a change in the employees’ terms and conditions, most likely to their
detriment, and distract employees from the task of bargaining for a replacement agreement.
[14] Having found it is appropriate to extend the default period we must consider the length
of the extension. We have a broad discretion in this regard, save that the extension cannot be
longer than 4 years. The AWU asks that the Agreement be extended by 12 months, or, in the
alternative, 8 months. Ozpak has asked that it be extended by 3 months. Ozpak notes that should
a further extension be needed a further application can be made.
[15] The purpose of the provisions relating to the sunsetting of zombie agreements is that
outdated agreements be replaced with modern industrial instruments. The parties here are
negotiating towards a replacement agreement. Those negotiations are progressing but need time
to be finalised. Here the circumstances include that the workforce is not large, the parties have
already made some progress in identifying the issues to be negotiated, and, while there are some
contentious issues, including wage rates, the Act provides access to the Commission to assist
in dealing with any disputes that arise. In the circumstances we agree with the AWU that an 8-
month extension provides an appropriate timeframe within which these matters can be resolved,
if necessary, with the assistance of the Commission, and an agreement can be finalised.
[16] We have decided to extend the default period for the Agreement to 6 August 2024. An
order to this effect has been published with this decision.
[17] The Agreement is also published, in accordance with subitem 20A(10A) of Sch 3 of
the Transitional Act, as an Annexure to this decision.
[2024] FWCFB 4
4
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
AC325715 PR770218
1 [2023] FWCFB 105.
2 [2023] FWCFB 122 at [4]
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/2023fwcfb122.pdf
