1
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 20A(4) - Application to extend default period for agreement-based transitional
instruments
Windolf Farms Pty Ltd T/A Windolf Farms
(AG2023/4617)
Agricultural industry
DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT SLEVIN
DEPUTY PRESIDENT GRAYSON
SYDNEY, 5 APRIL 2024
Application to extend the default period for Windolf Farms Pty Ltd Employee Collective
Agreement 2006
[1] Pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009 (Cth), (the Transitional Act) Windolf Farms Pty Ltd
T/A Windolf Farms (the Applicant) has applied to extend the default period for the Windolf
Farms Pty Ltd Collective Agreement 2006 (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.
[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.
[5] 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
[6] A Statement was provided by Sharron Windolf, General Manager of the Applicant in
support of the application. The Applicant is a family-owned agricultural business that operates
[2024] FWCFB 200
DECISION
AUSTRALIA FairWork Commission
[2024] FWCFB 200
2
a farm, including the production, packing and transport of vegetables. It employs approximately
62 casual employees and 28 permanent employees. It commenced bargaining for a replacement
agreement in September 2023.
[7] The Applicant submits that there is a significant degree of complexity relative to the
size and operations of the Applicant's business that is associated with bargaining for the
Applicant's Proposed Agreement. This is because of the relative size of the Applicant's
workforce, the number of casual employees and pieceworkers, the inherently seasonal nature
of the Applicant's business, the number of Modern Awards that are relevant to the bargaining,
and the significantly different terms and conditions which are contained in each of these Modern
Awards.
[8] Ms Windolf estimates that it will take until June 2024 for the Applicant to complete the
consultation and bargaining process, including to meet and negotiate with any designated
Bargaining Representatives, issue the draft version of the Applicant's Proposed Agreement and
supporting explanatory materials, conduct votes and then seek approval in the Fair Work
Commission.
[9] The Applicant submits that it is in similar circumstances to the applicants in KJ Family
Trust & The Trustee for the WJ Family Trust t/a Taylor Family Produce (Taylor Family
Produce)4 and Application by Tinmarl Pty Ltd as Trustee for R&M Patane Family Trust t/as
North Queensland Golden Fruit (Tinmarl)5 who, like the Applicant, are in the agricultural
industry.
[10] In Tinmarl the applicant was granted an extension of its agreement until 30 April 2024.
However the circumstances in Tinmarl can be distinguished from the current application
because in in Tinmarl bargaining for a replacement agreement was complicated by the fact that
the seasonal workers were engaged under a migrant labour scheme and were not available to
negotiate a replacement agreement prior to the harvest season which commenced in December
2023. We note that these or similar circumstances do not arise in the current application.
[11] In Taylor Family Produce, the applicant commenced bargaining on 31 August 2023
after a three-month seasonal gap and was granted an extension of its agreement until 7 May
2024. The applicant in that case provided evidence that the seasonal gap took place during June,
July, and August, when many employees take leave. In the current application, Ms Windolf has
provided evidence that Applicant has been aware of the changes the legislation since December
2023, however, it has been difficult to commence bargaining sooner given the inherently
seasonal nature of the Applicant’s business. Unlike the applicants in Tinmarl and Taylor Family
Produce, Ms Windolf has not provided any specific evidence about the dates that the season(s)
for the Applicant’s business commence and end so the basis of her estimation that the
replacement agreement will not be finalised until June 2024 is unclear. Without such evidence
we are not prepared to grant an extension until 30 June 2024 as sought by the Applicant.
[12] Taking into account the evidence and submissions before us, we consider that an
extension until 17 May 2024 is sufficient time for a replacement agreement to be made and
approved. This is in effect 8 months after bargaining for a new agreement commenced.
[2024] FWCFB 200
3
[13] Pursuant to item 20A(4) of Sch 3 to the Transitional Act, we order that the default period
for the Agreement is extended until 17 May 2024.
[14] The Agreement is published, in accordance with subitem 20A(10A)(c), on the Fair
Work Commission’s website.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
AC302212 PR773228
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] .
4 [2023] FWCFB 166.
5 [2023] FWCFB 124.
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/2023fwcfb105.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb105.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb137.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb166.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb124.pdf
