Zombie agreements
‘Zombie agreements’ are collective agreements that were made before the Fair Work Act 2009 (Cth) commenced, and continue to operate because the agreements have not been terminated or replaced by another agreement.
Due to the operation of the Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022, these agreements will automatically terminate by 7 December 2023. This is known as ‘sunsetting’.
If the employer has a collective agreement in place that constitutes a zombie agreement and the agreement still covers its employees, employers are required to notify the employees by 6 June 2023 that the agreement will terminate in December.
If the zombie agreement does not cover any employees, employers do not have to do anything – the agreement will simply be terminated on 7 December 2023.
Contents of notice
Employer must notify its employees in writing by 6 June 2023 that:
- the employee is covered by a zombie agreement;
- the zombie agreement will terminate on 7 December 2023 unless an extension application is made to the Commission to extend this period; and
- the sunsetting process commenced on 7 December 2022.
Extending zombie agreements
An application can be made to the Commission on or before 6 December 2023 to extend a zombie agreement in certain circumstances.
The application can be made by:
- the employer covered by the zombie agreement;
- an employee covered by the zombie agreement; or
- an industrial association that is entitled to represent the industrial interests of one or more of the employees covered by the zombie agreement.
There is no limit on the number of applications that can be made to extend a zombie agreement, provided the agreement has not yet terminated.
The Commission will approve an extension if:
- it is reasonable in the circumstances to do so; or
- it is otherwise appropriate in the circumstances to grant the extension, and one of the following applies:
- bargaining is occurring for a new enterprise agreement that would cover the employee or the group of employees covered by the zombie agreement; or
- the employee or group of employees would be better off overall if the zombie agreement continued to apply to them than if the relevant modern award applied.
Get in touch
Please contact our Workplace Relations team if you require any advice or assistance in relation to zombie agreements.
