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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
Sleeper Pty Ltd T/A Oporto Melbourne Central
(AG2023/4757)
Fast food industry
DEPUTY PRESIDENT SLEVIN
DEPUTY PRESIDENT GRAYSON
COMMISSIONER THORNTON
SYDNEY, 15 MARCH 2024
Application to extend the default period for the Sleeper Pty Limited - Certified Agreement
2004 - 2007
[1] Pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009 (Cth) (the Act), Sleeper Pty Ltd T/A Oporto Melbourne
Central (Applicant) has applied to extend the default period for the Sleeper Pty Limited -
Certified Agreement 2004 – 2007 (the Agreement).
[2] The application is made in accordance with subitem 20A(6)(a) on the ground that
bargaining is occurring for a proposed enterprise agreement that will cover the same or
substantially the same group of employees as covered by the Agreement and that it is
appropriate to do so. The application was made after the notification time for the proposed
enterprise agreement.
[3] The Full Bench in ISS Health Service 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.
[4] 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 Notice of Employee Representational Rights was issued on
2 November 2023. Information sessions with employees were conducted on 22 and 23
November 2023 and two employees have been elected as bargaining representatives.
[5] The applicant contends that an extension to 1 December 2024 would allow for the
finalisation of an agreement.
[2024] FWCFB 149 Note: A copy of the zombie agreement to which this
decision relates (AG838501) is available on our website.]
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/agreements/approved/AG838501.pdf
[2024] FWCFB 149
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[6] The workforce covered by the agreement and any replacement agreement is small and
negotiations should not be onerous. The time suggested in the application to extend the
Agreement for a further 12 months is excessive. We do not consider, taking into account the
steps taken in the bargaining to date and the size of the workforce, that a new agreement will
take the 12 months sought by the Applicant.
[7] In considering whether to extend the agreement and the length of the extension to be
granted, we have also taken into account that some conditions in the agreement are less
beneficial than the Fast Food Industry Award 2020, including the payment of ‘loaded’ hourly
rates, excluding weekend and public holiday penalty rates, uniform allowances and annual leave
loading.
[8] We have balanced that consideration with the information and submissions filed by the
applicant to the effect that bargaining has been commenced and progress has been made in the
bargaining. We consider that an extension until 6 June 2024 is sufficient time for a replacement
agreement to be made and approved.
[9] Pursuant to item 20A(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 6 June 2024.
[10] The Agreement is published, in accordance with subitem 20A(10A)(c) of the Act, on
the Fair Work Commission website.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
AG838501 PR772382
1 [2023] FWCFB 122 at [4].
THE SEAL OF TH NOISSINN
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb122.pdf
