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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
Tabeel Trading Nominees Pty Ltd T/A Tabeel Trading
(AG2023/4338)
Timber and paper products industry
DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT SLEVIN
DEPUTY PRESIDENT GRAYSON
SYDNEY, 4 APRIL 2024
Application to extend the default period for Tabeel Trading Nominees Pty Ltd Employee
Collective Agreement 2008
[1] Pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009 (Cth) (the Act), Tabel Trading Nominees Pty Ltd
T/A Tabeel Trading has applied to extend the default period for the Tabeel Trading
Nominees Pty Ltd Employee Collective Agreement 2008 (the Agreement) until 30 June 2024.
[2] The application is made in accordance with subitem (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 application was made after the notification time for the proposed
enterprise agreement.
[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 3 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.
[4] The Applicant has provided material to the Commission which establishes that a notice
of employee representational rights was issued to all staff on 11 October 2023 and that the first
[2024] FWCFB 199
DECISION
AUSTRALIA FairWork Commission
[2024] FWCFB 199
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bargaining meeting occurred on 6 November 2023. We are satisfied on the material provided
that the requirements in subitem (7) are met.
[5] As subitem (7) is met, subitem 6(a) requires consideration of whether it is otherwise
appropriate in the circumstances to extend the default period. In ISS Health Services, the Full
Bench considered it appropriate to do so where the parties sought time to negotiate a
replacement agreement and are not simply seeking to extend an agreement for the maximum
period for the sake of convenience. The Full Bench also took into account that while the zombie
agreement remained in place, the employees would be better off overall than if the relevant
modern award applied.
[6] The Applicant operates a business in the Timber Industry in Mount Gambier. It has 127
employees including 101 employees who will be covered by the replacement agreement.
[7] The employees covered by the Agreement are covered by either the Timber Industry
Award 2020, Road Transport and Distribution Award 2020, Manufacturing and Associated
Industries and Occupations Award 2020 or Clerks – Private Sector Award 2020 depending
upon the area of the Applicant’s business they work in.
[8] In relation to whether employees are better off under the Agreement compared to the
relevant Modern Award, the Applicant has submitted that it has ensured that the base Award
rates are currently being paid to employees. It says that the Agreement provides for penalties
which are less than Award rates as a fixed rate of pay is applied in the Agreement, but that this
has been beneficial to employees as it allows for ordinary hours to be worked when preferred
by employees due to the nature of the timber industry, including commencing work early in the
morning to allow for inclement weather.
[9] The Agreement does not have a span of hours provision. Hours are worked by agreement
between the Applicant and individual employees and vary according to individual factors,
climatic conditions, variations in demand and availability of wood and the amount of wood
harvested. Nominal hours are an average of 38 hours over a 52 week period but employees are
expected to work reasonable additional hours on a regular basis. Depending upon the area of
operation the employee works in, the Agreement provides that the employee can expect to work
up to 55 to 60 hours per week on average based on a 52 week period.
[10] The Agreement provides that employees will be paid an individually negotiated wage
depending upon their skills, experience and net worth to the Applicant which is at least the
minimum applicable rate in the Agreement. This rate is the same regardless of whether work is
performed on Public Holidays, Sunday or outside of the employee’s normal work patterns.
[11] The Agreement preserves a number of allowances from the Timber and Allied Industries
Award 1999 and various South Australian state based awards.
[12] In contrast, the Timber Industry Award 2020 provides that ordinary hours are worked
between the hours of 6:30am and 6:30pm Monday to Friday and by agreement on weekends.
Overtime is paid at the rate of 150% of the ordinary hourly rate for the first 2 hours and 200%
of the ordinary rate thereafter. Penalty rates are paid for weekend work and for afternoon and
night shifts. The other Modern Awards that cover the Applicant’s employees also have span of
[2024] FWCFB 199
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hours, overtime and penalty rates provisions. Employees who would otherwise be entitled to
these benefits under the relevant Award are therefore deprived of them by operation of the
Agreement.
[13] In a number of recent Full Bench decisions, the Commission has rejected applications
to extend the default period of transitional instruments that have inferior conditions compared
to the relevant Modern Award. In Kalfresh Management Services Pty Ltd,2 the Full Bench
declined to extend the default period of the agreements because of their inferior and outdated
terms.3 In Surf Hogs Pty Ltd T/A Hog’s Breath Café Surfers Paradise,4 the Full Bench found
that it was not appropriate to extend the default period of the agreement because employees
were likely to be disadvantaged by its inferior conditions if it continued to apply prior to
finalisation of the new agreement.5 In Pakwin Pty Ltd T/A Inglewood Hotel,6 the Full Bench
declined to grant a short extension of the default period of the agreement to 1 May 2024,
because the potential disadvantage to employees of allowing the agreement to continue
outweighed the time and resources involved in the employer making the necessary
administrative arrangements to give effect to the sunsetting agreement and then to incorporate
changes required from any replacement agreement.7
[14] We believe that the circumstances of the employees of the Applicant are comparable to
the employees referred to in those decisions. The submissions of the Applicant indicate that
employees are being paid Modern Award base rates only with the effect that they are not
receiving weekend and other penalty rates and overtime rates despite being required to work
excessive overtime on a weekly basis under the Agreement. The employees are therefore
significantly worse off than if the relevant Modern Award applied.
[15] The Applicant issued the notice of representational rights on 11 October 2023 and the
first bargaining meeting took place on 6 November 2023, just one month before the Agreement
was due to terminate under subitem (1). The Applicant sought an extension of the default period
that is 8 months from the commencement of bargaining. Based on this timeframe, if the
Applicant had initiated bargaining in or before April 2023, it is likely that a replacement
agreement would have been made before the Agreement was due to terminate on 6 December
2023. The Applicant has not explained why it was not able to do this.
[16] The Applicant has not pointed to any potential prejudice or inconvenience it would
experience if the Agreement terminates prior to a replacement agreement being finalised and
approved by the Commission. Taking into account all of these matters, we have decided that it
is not appropriate for us to extend the default period of the Agreement and we dismiss the
application.
[17] 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 Act, subitem (10)(e) provides that we must
extend the default period for the Agreement 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 until 11 April 2024.
[2024] FWCFB 199
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DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
AC316609 PR773188
1 [2023] FWCFB 122.
2 [2023] FWCFB 217.
3 Ibid, [14].
4 [2024] FWCFB 12.
5 Ibid, [16].
6 [2024] FWCFB 179.
7 Ibid, [11]-[12].
OF THE FAIR WORK L MISSION THE SEA
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb122.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb217.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb12.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb179.pdf
