Zombie Agreements in Teaching: Are You Stuck on an Old Pre-2010 Deal?

Zombie agreements were enterprise agreements made before the Fair Work Act 2009 came into force in 2010 — collective workplace deals that survived the transition by accident, often paying below the modern award rate, and that nobody had bothered to terminate or replace. The Closing Loopholes Act 2023 sunset all of them on 7 December 2023.

If you're a teacher (or any worker) covered by an agreement that hasn't been renegotiated since 2010 or earlier, that agreement is no longer in force. Your terms now come from:

• The relevant modern award — for teachers in non-government schools, generally the Educational Services (Teachers) Award MA000077, with some institutions covered by the Educational Services (Schools) General Staff Award MA000076.
• Any contract terms that lawfully exceed the award.
• The National Employment Standards (leave, notice, redundancy, public holidays).

For teachers moving from the state public system into a private school still operating from a frozen 2009-era deal, this is a significant question — the modern award typically pays better than a 15-year-old frozen agreement.

Authoritative sources: Fair Work Commission — Sunsetting of "zombie" agreements, Fair Work Ombudsman — Educational Services (Teachers) Award summary.

The term "zombie agreement" was the casual name given by Fair Work Commission members and IR practitioners to three categories of pre-Fair Work Act 2009 instrument that survived the 2010 transition:

• Pre-Reform certified agreements — collective agreements certified before the 27 March 2006 reforms.
• Workplace Agreements made under WorkChoices (collective and individual AWAs).
• Pre-Fair Work agreements made between 27 March 2006 and 1 July 2009.

These instruments were transferred into the Fair Work system in 2010 and continued to operate as "transitional instruments". They were never automatically terminated — they only ended if the parties agreed to terminate or replaced them with a new enterprise agreement under the Fair Work Act.

The problem: many of them sat unrevised for over a decade, often containing terms (no penalty rates, lower base rates, restrictive working hours) that fell below modern minimum standards. Terminating them required the employer or employees to apply to the Commission, and many employers had no incentive to do so.

The Closing Loopholes Act 2023 ended this by automatically sunsetting all zombie agreements on 7 December 2023. The Commission could grant short extensions in specific cases (where ending would result in worse terms for employees), but those extensions are rare.

Two practical checks:

1. Look at your employment contract or letter of offer. If it references an enterprise agreement, note the name and the year it was certified. Anything dated 2009 or earlier is suspect. Anything dated 2010 or later is a Fair Work Act agreement and is likely still in force or has since been replaced.
2. Search the Fair Work Commission's enterprise agreements database at fwc.gov.au/agreements-awards/enterprise-agreements. Enter your employer name. Any "transitional instrument" listed there was a zombie and is now sunset.

If your school's only listed agreement is from 2009 or earlier and there's no replacement, your real terms post-7 December 2023 are the modern award. Your employer has a legal obligation to apply the higher of (a) the award and (b) any contract terms.

If your contract is silent about an agreement (the typical case for teachers hired in the last 10 years at a small independent school), you've defaulted to the award all along. The zombie agreement only mattered for staff hired before the freeze.

The Educational Services (Teachers) Award MA000077 covers most teachers in non-government schools — independent schools, Catholic schools, language schools, vocational early childhood centres. It sets minimum pay rates by classification level (Graduate to Lead Teacher), spans of hours, leave, allowances, and conditions.

Key 2025-26 minimum annual salaries under the award (full-time):

• Graduate Teacher: ~$76,400
• Proficient Teacher Year 5+: ~$95,500
• Highly Accomplished Teacher: ~$108,300
• Lead Teacher: ~$117,400

(Exact figures change with the Annual Wage Review each July. Confirm against the current award pay guide.)

If your zombie agreement had a Graduate Teacher rate of $58,000 and the award rate is $76,400, the award rate now applies. The award is the floor — your contract can pay more, but it can't pay less.

Note that state public school teachers are not covered by the federal award — they're covered by state enterprise agreements specific to each state's Department of Education. The zombie sunset doesn't affect those because they were already replaced after 2010.

1. Compare your pay to the current award pay guide on the Fair Work Ombudsman website (calculate.fairwork.gov.au). Match yourself to the right classification (Graduate, Proficient at Year X, etc.).
2. Document the gap in writing — payslips, annual letter, contract — for at least the last 12 months.
3. Raise it internally first. Email HR or the Principal stating the agreement is no longer in force as of 7 December 2023, you understand your terms now derive from MA000077, and you'd like a written confirmation of your award classification and back-pay calculation. Many schools will simply update — the issue is rarely deliberate underpayment, it's administrative drift.
4. If they refuse or stall, lodge a complaint with the Fair Work Ombudsman online. The FWO has investigation powers and can issue compliance notices.
5. Back-pay claim. Underpayments can be claimed for up to six years. If your school had been paying you under a zombie agreement for the last few years and the agreement was lower than the award, the FWO and the Federal Circuit Court can order back-pay plus interest.
6. Union route. The Independent Education Union (IEU) is the relevant union for non-government school teachers and handles zombie-agreement disputes regularly. Membership pays for itself in one underpayment recovery.

I'm moving from a state school to an independent school — should I worry about zombie agreements?
At a well-run independent school, no — they will have an enterprise agreement made under the Fair Work Act post-2010, or apply the modern award properly. At a smaller school still operating informally, ask in the offer stage which instrument applies. If they say "we have an agreement from 2008", flag it. The agreement is sunset; the award now applies.

What if the school replaced their zombie before December 2023 with a new agreement?
That's the proper outcome — the new agreement is in force. The zombie isn't relevant any more. Compare the new agreement to the award (the BOOT — better off overall test — must have been satisfied) and to your contract.

What about Catholic schools?
Most Catholic education employers have current enterprise agreements made post-2010 (often diocese-wide, like the New South Wales/ACT Catholic Education Commission agreements). They are not zombie agreements.

Do zombie agreements still affect my long service leave?
Long service leave is generally state-legislated (NSW Long Service Leave Act 1955, Vic LSL Act 2018, etc.) so it doesn't depend on your enterprise agreement. The sunset doesn't affect LSL accrual.

Can my employer make me sign a new individual contract that pays the award and not the agreement?
Yes — once the zombie is sunset, the agreement is gone. A new contract on award terms is lawful. But it cannot pay less than the award for your classification. If the new contract proposes a salary lower than the award, you don't have to sign.