1
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
Application by DM & MT Nolan Pty Ltd
(AG2023/4353)
NOLSTAFF (GATTON) ENTERPRISE AGREEMENT 2009
Private transport industry
DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT SLEVIN
DEPUTY PRESIDENT GRAYSON
SYDNEY, 2 MAY 2024
Application to extend the default period for the Nolstaff (Gatton) Enterprise Agreement 2009
[1] Pursuant to subitem subitem 30(4) of Sch 7 to the Fair Work (Transitional Provisions
and Consequential Amendments) Act 2009 (the Transitional Act), DM & MT Nolan Pty Ltd
has applied to extend the default period for the Nolstaff (Gatton) Enterprise Agreement 2009
(the Gatton Agreement) until 6 December 2024. Sch 7 applies to enterprise agreements made
during the bridging period. Under subitem 30(1) the Agreement was to terminate on 6
December 2023.
[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 Gatton 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
[2024] FWCFB 249 [Note: A copy of the zombie agreement to which this
decision relates (AE873468) is available on our website.]
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/agreements/approved/AE873468.pdf
[2024] FWCFB 249
2
[6] In ISS Health Services Pty Ltd the Full Bench ordered an extension of 12 months in
circumstances where bargaining for a replacement agreement was occurring. The Full Bench
considered this sufficient time for a replacement agreement to be finalised in circumstances
where there was some complexity in the bargaining including that the existing agreement
covered a number of different sites, a diverse range of classifications and pay rates were linked
to a South Australian public sector industrial instrument, and that a previous attempt at
bargaining lasted for an extended period and did not succeed.
[7] At the time that the application was made, the following six enterprise agreements
applied to the Applicant and different groups of its employees:
(a) the Gatton Agreement;
(b) Nolstaff Employee Collective Agreement 2008 (Interstate);
(c) Nolstaff (Workshop) Employee Enterprise Agreement 2010;
(d) Nolstaff (VIC Depot) Enterprise Agreement 2011;
(e) Nolstaff (NSW Depot) Enterprise Agreement 2011; and
(f) Nolstaff (Administration) Enterprise Agreement 2010.
[8] The Applicant submits that in mid-2023, it decided to commence bargaining for one
single enterprise agreement which would cover the majority of its workforce and replace all of
the agreements currently applying to its workforce, apart from Nolstaff Employee Collective
Agreement 2008 (Interstate). This new enterprise agreement will also cover the Applicant’s
operational staff who do not fall within the coverage of any of the enterprise agreements but
fall within the coverage of the Road Transport and Distribution Award 2020. The Nolstaff
Employee Collective Agreement 2008 (Interstate) was extended pursuant to item 20A(4) of
Sch 3 to the Transitional Act to 6 May 20244 and replaced by the Nolan’s Transport Enterprise
Agreement 2023 (Interstate) which commenced on 7 May 2024.5
[9] Bargaining for the replacement agreement commenced in October 2023 and meetings
have been occurring regularly since that time. The Applicant submits that the bargaining
process is complicated by the logistical and administrative complexities associated with
bargaining with a geographical disparate workforce. The Applicant also submits the reversion
of the relevant employees back to the underpinning modern award would adversely impact
those employees, as the underpinning modern award contains less beneficial terms and
conditions compared to the Gatton Agreement. The Transport Workers Union is a bargaining
representative for the replacement agreement and has not advised the Commission of any
objections to the application.
[10] We are satisfied, based on the Applicant’s submissions, that there is significant
complexity in negotiating a replacement agreement for five enterprise agreements and that the
employees covered by Gatton Agreement will not be disadvantaged by extending the default
period. For these reasons we are prepared to extend the default period of the Gatton Agreement
until 6 December 2024.
[11] Pursuant to item 30(6) of Sch 7 to the Transitional Act, we order that the default period
for the Gatton Agreement is extended until 6 December 2024.
[2024] FWCFB 249
3
[12] The Gatton 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
AE873468 PR774458
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 [2024] FWCFB 206
5 [2024] FWCA 1215
OF THE FAIR WORK L MISSION THE SEA
https://www.fwc.gov.au/documents/agreements/approved/AE873468.pdf
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/2024fwcfb206.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwca1215.pdf
