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Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 7, Item 30(4) - Application to extend default period for enterprise agreement made
during the bridging period
A.C.N. Orchards Pty Ltd
(AG2024/1243)
2009 ACN ORCHARDS PTY LTD EMPLOYEE ENTERPRISE
AGREEMENT
Agricultural industry
DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT SLEVIN
COMMISSIONER CRAWFORD
SYDNEY, 11 JUNE 2024
Application to extend the default period for the 2009 ACN Orchards Pty Ltd Employee
Enterprise Agreement
[1] Pursuant to item 30(4) of Sch 7 to the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009 (Cth) (the Transitional Act), Sarah Crane (the
Applicant) has applied to extend the 2009 ACN Orchards Pty Ltd Employee Enterprise
Agreement.
[2] The Transitional Act 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.
[3] Subitem 30(4) permits an employer covered by the agreement, an employee covered by
the agreement, or an industrial association entitled to represent an employee covered by the
agreement to make application to extend the agreement. The application must be made before
the end of the grace period.
[4] The grace period is defined in the subitem 30(2) as the period of 12 months beginning
on the day Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better
Pay) Act 2022 (SJBP) commences. Part 13 of Schedule 1 to the SJBP Act commenced on 6
December 2022. Consequently, applications made under the Transitional Act to extend the
default period of an agreement could only be made up until the end of 6 December 2023. There
is no provision that permits the Commission to extend the time for the making of such
applications.
[5] The current application was made on 12 April 2024 which is after the end of the grace
period. On 14 April 2024 the Commission wrote to the Applicant advising that the application
[2024] FWCFB 285
DECISION
AUSTRALIA FairWork Commission
[2024] FWCFB 285
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was made out of time and if the zombie agreement has not been previously extended then it no
longer operates and cannot be extended. The Applicant was asked to advise the Commission
whether they would like to withdraw their application on this basis however no response was
received.
[6] The Transitional Act requires applications of this kind to be made before the end of the
grace period. It does not permit the Commission to consider applications made after that time.
The application is out of time and the Commission has no jurisdiction to deal with it.
[7] The application is dismissed.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR775864
OF THE FAIR WORK L MISSION THE SEA
