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
Farmfresh Fine Foods Pty Ltd As Trustee For The Farmfresh Fine Foods
Trust T/A Farmfresh Fine Foods
(AG2023/4650)
FARMFRESH FINE FOODS ENTERPRISE AGREEMENT 2009
Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT SLEVIN
DEPUTY PRESIDENT GRAYSON
SYDNEY, 21 MARCH 2024
Application to extend the default period for the FarmFresh Fine Foods Enterprise Agreement
2009
[1] Pursuant to subitem 30(4) of Sch 7 to the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009 (Cth), Farmfresh Fine Foods Pty Ltd as Trustee for the
Farmfresh Fine Foods Trust t/as Farmfresh Fine Foods (the Applicant) has applied to extend
the default period for the FarmFresh Fine Foods Enterprise Agreement 2009 (the
Agreement).
[2] The application is made in accordance with subitem 30(6)(a) on the ground that under
subitem (7) bargaining is occurring for a proposed enterprise agreement that will cover the
same, or substantially the same, group of employees as are covered by the Agreement and that
it is appropriate to do so.
[3] The Full Bench in ISS Health Services Pty Ltd1 described the requirements that must
be met for an application to extend the default period where bargaining for a replacement
agreement is made. Although that case involved a Division 2B State employment agreement to
which Sch 3A of the Act applies, the principles are identical to those applying to agreements to
which Sch 7 applies. The requirements are as follows:
i. The application was made after the notification time for the proposed enterprise
agreement;
ii. The proposed enterprise agreement covers the same employees as the Agreement;
and
iii. Bargaining for the proposed enterprise agreement is occurring.
[2024] FWCFB 181 [Note: A copy of the zombie agreement to which this
decision relates (AE874245) is available on our website.]
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/agreements/approved/AE874245.pdf
[2024] FWCFB 181
2
[4] The Applicant has provided material to the Commission which establishes that a notice
of employee representational rights was issued to all staff on 24 October 2023 and that
bargaining meetings have occurred on 27 November 2023, 15 December 2023 and 22 January
2024. The application to extend the Agreement was made on 29 November 2023. Both the
Agreement and the agreement that is being negotiated apply to 32 employees.
[5] The Applicant is seeking an extension of the Agreement until 30 June 2024 as it
considers that this is a reasonable estimation of when an Agreement will be approved by the
Commission. The Applicant will then be able to transition from the Agreement directly to a
new enterprise agreement without first reverting to the Food, Beverage and Tobacco
Manufacturing Award 2020.
[6] The Employer says it pays employees the hourly rates they would be entitled to under
the Award including casual loading. The Agreement replicates many of the provisions of the
Award including span of hours, public holiday rates and overtime rates where overtime is
required by the employer. The employees do not appear to be worse off under the Agreement
compared to the Award.
[7] We are satisfied on the material provided that the requirements in subitem (7) are met
and that it is appropriate to extend the default period. As the Full Bench observed in Suncoast
Scaffolding Pty Ltd2 the Commission has a discretion as to the length of the extension, subject
to the limitation that the extension cannot be 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.3
[8] The Applicant has been bargaining for a replacement agreement for a period of four
months with 32 employees and no matters of complexity or difficulty have been identified by
the Applicant. We therefore consider that an extension until 31 May 2024 is sufficient time for
a replacement agreement to be made and approved.
[9] Pursuant to item 30A(6) of Sch 3 to the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009 (Cth), we order that the default period for the Agreement,
is extended until 31 May 2024.
[2024] FWCFB 181
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[10] The Agreement is published, in accordance with subitem 30A(9A), on the Fair Work
Commission’s website.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
AE874245 PR772625
1 [2023] FWCFB 122
2 [2023] FWCFB 105 at [18]
3 See Suncaost Scaffolding Pty Ltd [2023] FWCFB 105 at [18] and Applications by APESMA [2023] FWCFB 137 at [31].
OF THE FAIR WORK L MISSION THE SEA
https://www.fwc.gov.au/documents/agreements/approved/AE874245.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb122.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb105.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb105.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb137.pdf
