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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
Kimberley Accommodation (East) Pty Ltd T/A Vagg’s Wyndham Liquor,
Hotel Kununurra and Kimberley Hotel, Kimerley Accommodation (West)
Pty Ltd T/A Moonlight Bay Suites, Matso’s Broome Brewery and PJIT
Head Office
(AG2023/4941)
KIMBERLEY ACCOMMODATION MULTI-ENTERPRISE
BARGAINING AGREEMENT 2009
Hospitality industry
DEPUTY PRESIDENT GRAYSON
DEPUTY PRESIDENT LIM
DEPUTY PRESIDENT THORNTON
SYDNEY, 22 MARCH 2024
Application to extend the default period for the Kimberley Accommodation Multi-Enterprise
Bargaining Agreement 2009
[1] Pursuant to subitem 30(4) of Schedule 7 to the Fair Work (Transitional Provisions
and Consequential Amendments) Act 2009 (Cth), Kimberly Accommodation (East) Pty Ltd
and Kimberley Accommodation (West) Pty Ltd (Applicants) have applied to extend the
default period for the Kimberly Accommodation Multi-Enterprise Bargaining Agreement
2009 (the Agreement).
[2] The application is made in accordance with subitem 30(6)(a) on the grounds that
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. The notification time for the proposed enterprise agreement was 9
November 2023.
[3] The Full Bench in ISS Health Services Pty Ltd1 described three requirements that must
be met for an application to extend the default period where bargaining for a replacement
agreement is made. Though ISS Health Services Pty Ltd involved a Division 2B State
employment agreement to which Sch 3A of the Act applies, the principles are identical to
those applying to agreements made during the bridging period to which Sch 7 applies. The
requirements are as follows:
(a) the application must have been made at or after the ‘notification time’ for a proposed
enterprise agreement;
[2024] FWCA 1032
DECISION
AUSTRALIA FairWork Commission
[2024] FWCA 1032
2
(b) the proposed enterprise agreement must cover the same, or substantially the same,
group of employees as the Division 2B State employment agreement; and
(c) bargaining for the proposed enterprise agreement must be occurring.
[4] The Applicants have provided the following information in support of the application:
(a) The Applicants operate five venues spread out across Broome, Halls Creek,
Kununurra and Wyndham in the north of Western Australia.
(b) The Applicants have commenced bargaining for a new enterprise agreement. Relevant
employees were provided with a Notice of Employee Representational Rights on 9
November 2023.
(c) There are currently 140 employees covered by the Agreement. The Applicants intend
for the same employees to be covered by the proposed new agreement.
(d) There have been information sessions to discuss the new enterprise agreement held on
1 December 2023; 19 December 2023; 9 January 2024; 30 January 2024; and 31
January 2024.
(e) The consultations and negotiations are affected by the geographical locations of the
Applicants’ operations, which are spread out over approximately 1100 kilometres.
These locations are also subject to extreme weather events. This makes consultation
and negotiation with staff unique.
(f) Approximately 65% of the Applicants’ employees are persons who do not speak
English as a first language. This will also impact negotiations as the Applicants will
need to arrange for translated documents or the services of a translator throughout the
negotiations.
[5] We are satisfied on the material provided that the requirements in subitem (6)(a) are
met and that it is appropriate to extend the default period. The applicant has commenced
bargaining for a replacement agreement. The factors impacting on that bargaining for the
Applicant and its employees are numerous and significant. We consider that an extension
until 1 December 2024 is sufficient time for a replacement agreement to be made and
approved.
[6] Pursuant to item 30(6) of Sch 7 to the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009 (Cth), we order that the default period for the
Agreement, is extended until 1 December 2024.
[2024] FWCA 1032
3
[7] The Agreement is published, in accordance with subitem 30(9A)(c), on the Fair Work
Commission’s website.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
AE874717 PR772657
1 [2023] FWCFB 122.
MISSION THE WORK CO THE FAIR WORK CON
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb122.pdf
