What is it?

A ‘zombie’ agreement is an individual or collective agreement made before the commencement of the Fair Work Act 2009 (FW Act) which was preserved when the FW Act commenced.

Zombie Agreements are:

  • Agreements that were made under the Workplace Relations Act 1996 (WR Act), including collective agreements and AWAs made under WorkChoices.
  • Preserved state agreements that were in operation immediately prior to that state transitioning into the federal (Fair Work) system.
  • Agreements that were made in between the repeal of the WR Act and the commencement of the FW Act (that is, between 1 July 2009 and 31 December 2009).

A list of possible Zombie Agreements has been made available by the Fair Work Commission: List of zombie agreements published | Fair Work Commission (fwc.gov.au)

What’s happening?

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 introduces an automatic sunsetting clause of 12 months for these agreements so that they will automatically terminate by 7 December 2023 unless an application is made to extend them.

An employer, employee or union can make an application to the Fair Work Commission (FWC) to extend the operation of a zombie agreement for up to four years. The FWC will extend a zombie agreement if:

  • There is a proposed new agreement that covers the employee on the zombie agreement and bargaining for the new agreement is occurring; or
  • An employee would be ‘better off overall’ remaining on the zombie agreement rather than on the relevant modern award; or
  • The FWC is satisfied that it is reasonable in the circumstances to do so.

Employers who have employees covered by a zombie agreement have until 7 June 2023 to notify them that the agreement will terminate automatically unless an application is made to extend its termination.

What does this mean for me?

It is unlikely that many PA members are currently covered by zombie agreements. However, if you do receive notification from your employer that one of these agreements is to be terminated, you are strongly encouraged to contact our Workplace Advice and Support Team for further advice at [email protected]