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Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 20A(4) - Application to extend default period for agreement-based transitional
instruments
Natural Resource Assessments T/A Nra Environment Consultants
(AG2023/4313)
NATURAL RESOURCE ASSESSMENTS EMPLOYEE COLLECTIVE
AGREEMENT 2009
Scientific services
DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT ROBERTS
DEPUTY PRESIDENT SLEVIN
SYDNEY, 13 MARCH 2024
Application to extend the default period for Natural Resource Assessments Employees'
Collective Agreement 2009
[1] Pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009 (Transitional Act), Natural Resource Assessments
Pty (Applicant) has applied to extend the default period for the Natural Resource
Assessments Employees’ Collective Agreement 2009 (Agreement).
[2] The Agreement was approved by the former Workplace Authority on 25 June 2009 in
accordance with the provisions of the Workplace Relations Act 1996. The Agreement is a ‘WR
Act instrument’ within the meaning of item 2(2) of Sch 3 of the Transitional Act. It is a
collective agreement-based transitional instrument to which Sch 3 applies.
[3] Sch 3 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 the provisions allowing for the extension of the default period for zombie agreements
are described in detail in the Full Bench decision in Suncoast Scaffold Pty Ltd1 (Suncoast). We
refer to and rely upon what is said in that decision.
[4] Under subitem 20A(6) of Sch 3, where an application is made under subitem 20A(4) for
the default period to be extended, the Commission must extend the default period for a period
of no more than four years if, under subitem (6)(a), either subitem (7), (8) or (9) applies and it
is otherwise appropriate to do so, or, under subitem (6)(b), it is reasonable in the circumstances
to do so. Subitem (7) is not relevant to the present circumstances as it only applies if, amongst
[2024] FWCFB 136 Note: A copy of the zombie agreement to which this
decision relates (AC324274) is available on our website.]
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/agreements/approved/AC324274.pdf
[2024] FWCFB 136
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other things, the application is made at or after the notification time for an agreement. There
was no notification time in this case. Subitem (8) applies only if the application relates to an
individual agreement-based transitional instrument and is not relevant here. Subitem (9) applies
if it is likely that as at the time the application is made, the award covered employees, viewed
as a group, would be better off overall if the agreement continued to apply than if the relevant
modern award applied. The Applicant did not contend that subitem (9) applied.
Grounds for the Application
[5] The application is advanced on the ground that the Applicant would like to continue
using the Agreement but make “administrative changes” to bring it in line with current awards
and the NES. The Applicant said that they want to extend the default period to allow time to
make a new agreement, however at the time of the application, bargaining for a new agreement
had not commenced. In the circumstances, we propose to deal with the application on the basis
that it is said that subitem (6)(b) applies and it is reasonable in the circumstances to extend the
default period.
[6] The application is to extend the default period until 7 December 2025.
Background
[7] The Applicant is an environmental consultancy firm that provides environmental
services such as consulting, pre-clearance surveys, water and soil sampling and land
rehabilitation monitoring on natural resource management projects. The Applicant currently
has 16 employees covered by the Agreement. Those employees are employed on a full-time,
part-time and casual basis. The full-time and part-time employees are currently employed on
an annualised salary arrangement provided for in the Agreement.
[8] The majority of employees would, in the absence of the Agreement, be covered by the
Professional Employees Award 2020 (Professionals Award). The remainder would be covered
by the Clerks – Private Sector Award 2020 (Clerks Award).
[9] The Agreement applies to the exclusion of all awards and contains a number of inferior
terms and conditions compared to the Awards. Wages paid under the Agreement are based on
AFPC rates set out in Schedule 2 as adjusted from time to time. The rates include a 15%
annualised salary loading paid in lieu of specified award entitlements, a 17.5% leave loading
(for permanent employees) and an all-purpose district allowance of $1.05 per week. Those
receiving the annualised salary loading do not receive allowances, penalty rates or overtime.
They are also expected to work up to 180 hours per four-week cycle. Hours worked above this
limit may be allowed to be taken as time off in lieu (TOIL). Those time off in lieu hours are
accrued on an hour for hour basis and are not payable on termination. Under both awards,
overtime hours accrued but not taken as time off must be paid at overtime rates at the employee's
request. This is also the case for time accrued but not taken after six months, or on termination.
[10] Under the Clerks Award, overtime is payable at 150% for the first two hours on Monday
to Saturday and at 200% thereafter. There may be instances where full-time employees under
the Agreement who would otherwise be covered by the Clerks Award and who work overtime
hours would receive less than they would under the Award. The absence of applicable
allowances and inferior TOIL provisions would compound this disadvantage.
[2024] FWCFB 136
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[11] Clause 4.2 of the Agreement provides that part-time employees will work an average of
38 ordinary hours per week between Monday and Saturday averaged over a 4 week period (152
hours). The agreement is silent on part-time safeguards provided at clause 10 of the Clerks
Award. These include the employer and employee, at the time of engagement, agreeing in
writing to the number of hours to be worked each day, the days of the week on which the
employee will work and the starting and finishing times each day. The Agreement is silent on
part-time employees being paid overtime for working in excess of the agreed hours as mutually
arranged as per Clause 10.6 of the Clerks Award.
Clause 4.2(g) of the Agreement allows for the employer to increase or decrease a part- time
employee’s hours of work in order to meet unexpected fluctuations in business activity. Clause
10.3 of the Clerks Award provides that any changes to the number of hours worked each day
and the times at which the employee will start and finish work each day must also be agreed in
writing. Clause 10.4 of the Clerks Award provides that the days of the week on which an
employee will work may only be changed by the employer by giving 7 days’ notice of the
change. The Agreement does provide a more beneficial minimum engagement period of 4 hours
for part-time employees. The Clerks Award provides a minimum engagement of 3 hours at
clause 10.7. The Professionals Award does not provide a minimum engagement for part-time
employees.
[12] The Agreement provides a less beneficial casual loading of 23% compared to 25%
provided at clause 11 of both awards, although as a matter of practice, a loading of 25% is being
paid. The Agreement is silent on a minimum engagement for casual employees. Clause 11 of
the Clerks Award provides a minimum engagement of 3 hours and clause 11 of the
Professionals Award provisions a minimum engagement of 2 hours. The Agreement is silent
on casual employees being paid overtime penalties on a cumulative basis with the casual
loading as per clause 11.2 of the Clerks Award. The Agreement is silent on casual employees
being paid the casual loading on all hours worked as per clause 11.1 and Schedule B.3.1 of the
Clerks Award.
[13] The Agreement is silent on nearly all award allowances but does provide a meal
allowance of $10 after an employee is directed to work more than 10 hour per day. This amount
is inferior to that provided for in the Clerks Award. The Agreement does provide a Division
and District Allowance of $1.05 per week which is for all purposes.
[14] We also note that notwithstanding clause 1.13.1 of the Agreement which provides that
the Agreement and the National Employment Standards (NES) combine to form the minimum
conditions of employment for employees covered by the Agreement, there are a number of
provisions in the Agreement that appear to be inconsistent with the provisions of the NES.
These include clauses 2.2.2 and 2.6.3 dealing with notice for probationary employees, clause
5.1.3 dealing with accrual of annual leave and clauses 5.2.3 and 5.2.4(a) dealing with accrual
of and notice for the taking of personal leave. The Applicant said that as a matter of practice,
the accrual of annual leave and personal leave was calculated on a per day basis regardless of
the period of continuous service.
[15] The Applicant referred to and provided a copy of a document titled NRA Employee
Guidelines (Guidelines). These Guidelines deal with various employment-related matters. It is
expressed to be a subordinate document which is not part of the Agreement and which cannot
be altered without the written approval of a Director of the Applicant. The Applicant relied on
[2024] FWCFB 136
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the Guidelines to supplement the terms of the Agreement, for example in relation to the
implementation of TOIL arrangements.
[16] In Suncoast Scaffold Pty Ltd, the Full Bench described the ‘reasonable’ criterion in item
20A(6)(b) of Sch 3 to the Transitional Act in this way:
[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.
[17] Full Benches of the Commission have said a number of times that the purpose of the
sunsetting arrangements introduced into the Transitional Act is that zombie agreements are to
be replaced by contemporary instruments made under the Fair Work Act 2009 (FW Act). The
present Agreement contains numerous inferior and outdated provisions. The Applicant has
recognised the desirability of bringing its industrial arrangements into line with contemporary
standards and has indicated that it intends to enter into a new agreement for that purpose. In a
number of instances, such as in the case of the casual loading percentage, the terms of the
Agreement no longer reflect what is happening in practice.
[18] We also note that the Applicant has said that to the extent that the Agreement does
contain provisions that are superior to the Awards, those arrangements will continue if the
default period is not extended.
[19] The default period cannot be extended simply because one party to the zombie
agreement wants that agreement to continue. We must be positively satisfied that an extension
is reasonable in the circumstances. Having regard to the matters identified above, we are not
satisfied that it is “reasonable in the circumstances” to extend the default period in accordance
with subitem 20A(6)(b) of Sch 3.
[20] As our decision is to refuse to extend the default period under subitem 20A(6) of Sch 3
and our decision is made after the sunset date in the Transitional Act, subitem 20A(11) provides
that we must extend the default period to the day of this decision or specify a day that is not
more than 14 days after the day of this decision. We have decided that to enable the parties to
make the necessary administrative arrangements to give effect to the sunsetting of the
Agreement the default period is extended to 27 March 2024.
[2024] FWCFB 136
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DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
AC324274 PR772317
1 [2023] FWCFB 105.
OF THE FAIR WORK L MISSION THE SEA
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb105.pdf
