The sun has now set on zombie agreements

As of 7 December 2023, all ‘zombie agreements’ have now been automatically terminated (sunsetted), as a result of changes to the Fair Work Act 2009 (Cth) (FW Act) by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amendment Act), unless an extension of the zombie agreement has already been applied for or approved by the Fair Work Commission (FWC).

Importantly, this amendment to the FW Act does not affect any agreements certified by the South Australian Employment Tribunal.

A ‘zombie agreement’ is a term given to certain types of workplace agreements which were made prior to the commencement of the FW Act as well as other transitional agreements which were agreed prior to 2009 or between 1 July 2009 and 31 December 2009. Zombie agreements often contain provisions which are less favourable to employees than if an enterprise agreement were entered into under the current industrial legislation.

As we advised in our previous article on zombie agreements which can be found here, applications could be made to the FWC to extend a zombie agreement in certain circumstances.

What to do if a zombie agreement has expired

If an extension to a zombie agreement has not been applied for or approved by the FWC, the minimum employment standards that were set by the zombie agreement are no longer applicable. It is now necessary to refer to the terms of an enterprise agreement (if applicable) or the appropriate modern award to determine the minimum employment standards that are now applicable.

If an employer does not currently have an enterprise agreement in place, and is unsatisfied with the terms of the applicable modern award, employers may wish to consider commencing negotiations for an enterprise agreement. Alternatively, individual flexibility arrangements or employment contracts can be used to define employment standards for individual employees.

If an application for extension of a zombie agreement is still pending

The FWC is still obliged to determine applications for the extension of zombie agreements that are yet to be considered. In this case, the zombie agreement that is subject of the application will continue to be operative until the application is decided.

If the FWC ultimately decides to refuse the extension, the expiry date of the zombie agreement may be extended by the FWC to a date no more than 14 days after the day the refusal decision is made.

Should you require any assistance navigating the changes brought about by the sunsetting of zombie agreements please contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au, or Lincoln Smith on +61 8 8210 1203 or lsmith@normans.com.au.