As previously advised, on 7 December 2023 certified agreements [which commenced operation before 1 January 2010] that are still in operation (‘zombie agreements’) will automatically terminate (‘sunset’) unless an application is made to the Fair Work Commission (FWC) before 7 December 2023 to extend their operation.
What are zombie agreements?
Zombie agreements are industrial agreements made before 1 January 2010, when modern awards commenced operation under the Fair Work Act 2009 (Cth) (FW Act), and which continue to operate.
Unlike enterprise agreements made after that date, zombie agreements were not required to be compared against modern awards for the purposes of the better-off overall test (BOOT), meaning that employees covered by those agreements may have less beneficial terms and conditions than they would otherwise receive under the applicable modern award.
When a zombie agreement sunsets, the legal minimum pay and conditions for employees that were covered by that agreement are very likely to change.
How do I check if an employee is covered by a zombie agreement?
Helpfully, the Fair Work Commission (FWC) published a list of zombie agreements that you can view via the following link. Our list of possible zombie agreements | Fair Work Commission (fwc.gov.au)
Members need to check if your existing agreement at your workplace was made before 1 January 2010. If you have an agreement operating at your workplace made before 1 January 2010, under the FW Act it will automatically cease to operate on 7 December 2023
Can we extend the agreement?
Employers can make an application to the FWC on or before 6 December 2023 to extend an agreement for up to 4 years.
An application to extend the operation of the agreement may be made by an employer, an employee covered by the instrument, or an industrial association entitled to represent the interest of one or more employees covered by the instrument.
See link below:
Extending a zombie agreement | Fair Work Commission (fwc.gov.au)
Employers were required to provide affected employees with notice on or before 6 June 2023 if any employees in your workplace were covered by a zombie agreement informing them that:
- the zombie agreement will automatically terminate on 7 December 2023, unless an extension request is made to extend the default period; and
- the sunsetting process commenced on 7 December 2022.
If you intend to extend the agreement you must also inform employees that an application may be made by an association that is entitled to represent the industrial interests of one or more of the employees covered by the zombie agreement.
Jobs Australia will continue to provide Members with updates about this important change in the Fair Work Act 2009 (Cth) and also if any new information becomes available.