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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
NGS Services Group Pty Ltd
(AG2024/1934)
NATIONAL MANAGEMENT GROUP EMPLOYEE COLLECTIVE
AGREEMENT 2006
Security industry
DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT ROBERTS
DEPUTY PRESDIENT SLEVIN
SYDNEY, 1 AUGUST 2024
Application to extend the default period for the National Management Group Employee
Collective Agreement 2006
[1] NGS Services Group Pty Ltd applied under Item 20A(4) of Sch 3 to the Fair Work
(Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act)
to extend the default period for the National Management Group Employee Collective
Agreement 2006 (Agreement),
[2] An earlier application seeking to extend the default period of the Agreement was granted
extending the default period to 6 June 20241. The application to further extend the Agreement
was 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 are covered by the Agreement and that it was otherwise appropriate to do so. The
applicant proposed that the Agreement be further extended until 1 January 2025.
[3] The application was opposed by a bargaining representative for the replacement
agreement. A timetable was set for the hearing of the application. The matter was to be heard
on 5 August 2024. On 22 July 2024 the Applicant lodged a notice of discontinuance with a
request that the discontinuance take effect from 5 August 2024.
[4] Section 588 of the Fair Work Act 2009 (Cth) (FW Act) provides that a person may
discontinue an application in accordance with the procedural rules. The Fair Work Commission
Rules 2024 at rule 10 provide that a matter may be discontinued by lodging a notice of
discontinuance. In the ordinary course, the lodging of a notice of discontinuance will bring
proceedings to an end at the time the notice is lodged. Here the notice was lodged on 22 July
2024, but the Applicant seeks that the matter be discontinued from 5 August 2024. The notice
[2024] FWCFB 326 [Note: A copy of the zombie agreement to which this
decision relates (AC302833) is available on our website.]
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/agreements/approved/AC302833.pdf
[2024] FWCFB 326
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of discontinuance is consequently not made in accordance with the procedural rules. While we
may waive compliance with the rules in accordance with rule 7 there is no need to do so here
as it will have no practical effect.
[5] Subitem 20A(11) of Schedule 3 of the Transitional Act is to the effect that that where
an application is made under subitem 20A(4) and the Commission has not made a decision on
the application by the time the Agreement would otherwise terminate, the Agreement continues
to operate until the decision is made. If the decision is to refuse to extend the default period,
then the Commission must extend the default period to the day the decision is made or a day
that is not more than 14 days after the decision is made.
[6] In circumstances where the Applicant wishes to discontinue the application to extend
the default period for the Agreement from 5 August 2024, we have decided to refuse the
application. It is neither appropriate to extend the Agreement under item 20A(6)(a) nor
reasonable to do so under subitem 20A(6)(b). As our decision is made after the Agreement was
to terminate in accordance with the first extended default period, we must extend the default
period to the day of this decision or specify a day that is not more than 14 days after the date of
this decision.
[7] We have decided that to enable the Applicant to make the necessary administrative
arrangements to give effect to the sunsetting of the Agreement the default period is extended
until 5 August 2024.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
AC302833 PR777776
1 [2024] FWCFB 90
OF THE FAIR WORK L MISSION THE SEA
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb90.pdf
