‘Zombie’ Agreements

A zombie agreement is an agreement made before the commencement of the Fair Work Act 2009 (FW Act) which continues to operate as it has not been terminated or replaced by another agreement.

Zombie agreements are:

  • agreements that were made under the Workplace Relations Act 1996 (WR Act), and which were
  • preserved when the Fair Work Act 2009 commenced. They include collective agreements made under the WR Act and AWAs. 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 (i.e. between 1 July 2009 and 31 December 2009).
Workers stuck on these WorkChoices-era agreements may have been unwittingly languishing on inferior terms and conditions for years.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 introduces an automatic sunsetting clause of 12-months for these ‘zombie’ agreements, unless an application is made to extend that period.

An application can be made to extend the agreement if bargaining has commenced for a proposed replacement agreement, or if the relevant employee(s) would be better off overall on the old agreement.

Employers who have employees covered by these agreements have an obligation to notify them that the agreement will terminate unless an application is made to extend its termination. This notification must come within six months (i.e. by June 2023).

It is unlikely that many 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.