Extending the default period for a pre-2010 agreement (a ‘zombie agreement’)

You can apply to extend the default period for a pre-2010 agreement that is still in operation (a ‘zombie agreement’) if you are:

• an employer covered by the agreement
• an employee covered by the agreement, or
• an industrial association that is entitled to represent the industrial interests of one or more of the employees covered by the agreement.

You must apply for an extension before 7 December 2023. The Commission can extend the default period for up to 4 years.

If you have already been granted an extension to the default period beyond 6 December 2023, you can apply for a further extension. You must apply before the end of the extended default period.

You can make as many extension applications as you like, provided the pre-2010 agreement has not yet terminated.

You must include a copy of the pre-2010 agreement with your extension application.

Your application should specify whether bargaining is occurring for a new enterprise agreement, or whether the employee(s) would be better off overall if the pre-2010 agreement continued to apply than if the relevant modern award applied.

To apply for an extension of the default period, use Form F81 – Apply to extend the default period for a zombie agreement.

Generally, the Commission must approve the extension if:

• it is reasonable in the circumstances to do so, or
• it is otherwise appropriate in the circumstances to extend the default period and one of the following applies:
  • bargaining is occurring for a new enterprise agreement that would cover the employee or group of employees covered by the zombie agreement, or
  • the employee or employees would be better off overall if the zombie agreement continued to apply to them than if the relevant modern award applied.

See Item 20A of Schedule 3, Item 26A of Schedule 3A and Item 30 of Schedule 7 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

If you made an application for an extension before 7 December 2023 that has not been decided, the Commission must still decide the application. 

If the Commission decides to refuse the extension, the Commission must extend the default period until the later of:  

• the end of the day of the refusal decision, or  
• such later day specified in the refusal decision (that is not more than 14 days after the day the refusal decision is made). 

Any decision will be taken to have been made immediately before 7 December 2023.