[2024] FWCFB 130
The attached document replaces the document previously issued with the above code on 12
March 2024 to address minor typographical errors identified in paragraph [5]. Paragraph [11]
is also amended to remove reference to the phrase which stated that “an order to give effect to
this decision will be published separately”. Paragraph [11] now reads that “pursuant to item
26A(6)(a) of Sch 3A to the Transitional Act, we order that the default period for the Agreement
is extended until 6 April 2024.”
Associate to Deputy President Slevin
Dated 14 March 2024
1
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
SSUT Pty Ltd T/A East End Hotel
(AG2023/4961)
EAST END HOTEL CERTIFIED AGREEMENT 2002
Hospitality industry
DEPUTY PRESIDENT SLEVIN
DEPUTY PRESIDENT O’KEEFFE
COMMISSIONER LIM
SYDNEY, 14 MARCH 2024
Application to extend the default period for East End Hotel Certified Agreement 2002
[1] SSUT Pty Ltd (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 East End Hotel Certified Agreement 2002 (Agreement) to
30 June 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.
[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 were to 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
affirmed in Royal Aero Club of Western Australia Inc.2 That analysis applies equally to item
26A of Sch 3A. It is not necessary to repeat it here.
[2024] FWCFB 130
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/
[2024] FWCFB 130
2
[5] When an application is made under subitem (4) of item 26A of Sch 3A to the
Transitional Act, the Commission is required, under subitem (6) of item 26A to extend the
default period for an agreement-based transitional instrument 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 has been made pursuant to subitem 6(b) on the basis that it is reasonable
in the circumstances to extend the default period to 30 June 2024.
The Applicant’s case
[7] The Applicant provided the following information in support of its application:
(a) The Applicant operates a hotel and bottle shop in a regional area in Queensland. The
Applicant employs approximately 40 employees. All 40 employees are covered by the
Agreement.
(b) A Notice of Employee Representational Rights for a proposed new agreement was
issued on 21 December 2023. There having been delays in progressing bargaining as
December and the lead up to Christmas is the peak time for the Applicant’s bottle shop.
(c) There are complexities involved in bargaining for a new agreement due to the relative
size of the workforce, the number of casual employees and the varying provisions of the
Hospitality Award.
(d) The Applicant anticipates that it can finalise bargaining by the end of February 2024.
Consideration
[8] In Suncoast Scaffolding Pty Ltd the Full Bench described the ‘reasonable’ criterion in
applications to extend default periods as follows3:
[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.
[9] 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.
[2024] FWCFB 130
3
[10] We have not been advised that the bargaining has finalised however, we are of the view
that, as bargaining is occurring and the anticipated completion of that bargaining is soon it is
reasonable to extend the default period to 6 April 2024.
[11] Pursuant to item 26A(6)(a) of Sch 3A to the Transitional Act, we order that the default
period for the Agreement is extended until 6 April 2024.
[12] The Agreement is published, in accordance with subitem 26A(10A)(c) of Sch 3A, as an
annexure to this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
AG540005 PR772264
1 [2023] FWCFB 105.
2 [2023] FWCFC 247.
3 Ibid.
FORK THE SEAL OF NOISSINNO
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb105.pdf
