Employers need to be aware that from 7 December 2023, all zombie agreements, other than those for which the Fair Work Commission has granted an extension, have been replaced by relevant modern awards made by the Fair Work Commission (FWC) under the Fair Work Act 2009 (Cth) (Fair Work Act).
A ‘zombie agreement’ is an agreement made before the commencement of the Fair Work Act, and which continued to operate as if it had not been terminated or replaced until now.
Unless your employer or employees applied to the Fair Work Commission prior to 7 December 2023 to extend the default termination period, your agreement is likely to now have terminated.
Agreements that automatically terminated on 7 December 2023 can include:
- certified agreements;
- collective agreements;
- certain state registered collective and individual agreements;
- Australian workplace agreements;
- Enterprise agreement made by the Commission between 1 July 2009 and 21 December 2009; and
- individual transitional employment agreements.
What does this mean for employers?
If an extension was not granted, employee pay and conditions are now covered under the relevant modern award or possibly another registered agreement. Employers should ensure they are aware of their new rules, responsibilities, and entitlements under the relevant industry award.
Differences of entitlements under an employer’s old zombie agreement and the award may include:
- minimum pay rates and classifications;
- hours of work and overtime; and
- penalty rates and allowances.
Additionally, employers should review current workplace policies, procedures, and practices as well as employment contracts to ensure compliance under the new relevant modern award.
Non-compliance with modern award obligations is a breach of the Fair Work Act and employers may be liable for serious penalties.
Employers or employees also have the opportunity to bargain for a new registered or enterprise agreement which would replace the relevant modern award.
To determine which modern award covers you or your business, the FWC provides a tool to assist available at https://www.fairwork.gov.au/employment-conditions/awards#find-my-award and a list of all modern awards available at https://www.fairwork.gov.au/employment-conditions/awards/list-of-awards. However, for complex or multi-industry organisations it can be challenging to identify the modern award or awards that apply. If this is the case, we recommend seeking our advice to ensure you are applying the correct modern award.
Contact Griffin Legal to find out more about more about enterprise agreement bargaining, or for advice on your employees’ new entitlements.