FWC publishes list of ‘zombie’ agreements PLUS important dates for affected employers

List of ‘zombie’ agreements

The Fair Work Commission has published a list of Zombie Agreements, which will help affected employers understand if they must comply with recent legislative changes brought by the Fair Work Amendment (Secure Jobs Better Pay) Act 2022’s (Amendment Act). The Fair Work Commission’s list is accessible here.

Summary of changes and relevant dates for actioning

As identified in our 2 December 2022 Legal Alert (accessible here), the Amendment Act’s changes to the Fair Work Act 2009 (Cth) mean that ‘zombie’ agreements will automatically terminate (i.e. be ‘sunsetted’) at 7 December 2023 (the default period), unless:

• this date is subsequently extended by the Fair Work Commission (FWC);
• the agreement is terminated earlier;
• the agreement is replaced before 7 December 2023; or
• an employer or employee covered by a ‘zombie agreement’, or a union, applies to extend the ‘default’ period for no more than 4 years.

Under the Amendment Act, an employer covered by a ‘zombie’ agreement must, before 7 June 2023, give employees covered by a ‘zombie’ agreement written notice advising:

• that the employee is covered by that agreement; and
• that the agreement will terminate unless an application is made to the FWC before 7 December 2023, for the FWC to extend the ‘default period’; and
• of the day on which part 13 of the Amendment Act commenced (i.e. 7 December 2022).

Failure to provide this written notice will expose employers to penalties.

Employers covered by zombie agreements must start to consider what these changes mean for their operations. If a zombie agreement terminates at 7 December 2023 without an extension, a modern award (or awards) is or are likely to apply. If this cannot meet the needs of the enterprise, or is otherwise not desired, employers should consider whether an extension is appropriate, and if not, whether bargaining for a new agreement is suitable.

EMA Legal can assist employers to understand these changes and provide advice about bargaining strategies.