1
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 20A(4) - Application to extend default period for agreement-based transitional
instruments
Health Services Union
(AG2023/1425)
KIRINARI COMMUNITY SERVICES LIMITED HUME RIVERINA
BRANCH - CERTIFIED AGREEMENT 2006-2008
Health and welfare services
DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT ROBERTS
DEPUTY PRESIDENT SLEVIN
SYDNEY, 7 SEPTEMBER 2023
Application to extend the default period for the Kirinari Community Services Limited Hume
Riverina Branch - Certified Agreement 2006-2008
[1] The Health Service Union (Victoria No. 2 Branch) (the Applicant) has applied under
item 20A(4) of Schedule 3 to the Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009 (Cth) (Transitional Act) to extend the default period for the Kirinari
Community Services Ltd Hume Riverina Branch Certified Agreement 2006-2008
(Agreement) for a period of two years.1
[2] The Agreement was approved on 21 April 2006 under s.170LT of the Workplace
Relations Act 1996 (Cth). It is a collective agreement-based transitional instrument within the
meaning of item 2(5)(c) of Schedule 3 to the Transitional Act. Such instruments continue to
apply to employees and employers covered by it because of item 3 of Schedule 3 of that Act.
Agreements of this kind are commonly referred to as ‘zombie agreements.’
[3] Under the terms of the Agreement, the parties bound by it are Kirinari Community
Services Ltd (Kirinari) and the Health Services Union of Australia. Kirinari supports the
application to extend the default period.
[4] The Australian Services Union (ASU) has filed submissions in relation to the proposed
extension of the default period. It submitted that it has members employed under the
agreement in New South Wales and under two other agreements with Kirinari that apply in
New South Wales. The ASU says that Kirinari has indicated that the outcome of the present
application may influence its response to the pending termination of those two other
agreements. The ASU opposes the extension of the default period.
[2023] FWCFB 158 [Note: A copy of the zombie agreement to which this
decision relates (AG848751) is available on our website.]
DECISION
AUSTRALIA FairWork Commission
http://www.austlii.edu.au/au/legis/cth/consol_act/fwpacaa2009656/
http://www.austlii.edu.au/au/legis/cth/consol_act/fwpacaa2009656/
http://www.austlii.edu.au/au/legis/cth/consol_act/fwpacaa2009656/
https://www.fwc.gov.au/documents/agreements/approved/ag848751.pdf
[2023] FWCFB 158
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The Transitional Act
[5] The Transitional Act was amended by the Fair Work Legislation Amendment (Secure
Jobs, Better Pay) Act 2022 (Cth) to provide for the automatic termination of all remaining
transitional instruments. Pursuant to subitems 20A(1) and (2) of Schedule 3 to the
Transitional Act, the Agreement will terminate on 6 December 2023 unless it is extended by
the Commission. The main features of item 20A of Schedule 3 to the Transitional Act are
described in detail in the Full Bench decision in Suncoast Scaffold Pty Ltd2 and we rely upon
what is said in that decision.
[6] Under subitem (6) of item 20A of Schedule 3 to the Transitional Act, upon
application, the Commission is required to extend the default period for an agreement-based
transitional instrument for a period of no more than four years if the Commission is satisfied
that:
(a) Subitem (7), (8) or (9) applies and it is otherwise appropriate in the circumstances
to do so; or
(b) it is reasonable in the circumstances to do so.
[7] The application is advanced on the basis that subitem (9) of item 20A has been met
and it is otherwise appropriate in the circumstances to extend the default period. Further, the
Applicant says that subitem (6)(b) has also been satisfied and it would be reasonable in the
circumstances to extend the default period.
[8] Subitem (9) applies if:
(a) the application relates to a collective agreement-based transitional instrument; and
(b) it is likely that, as at the time the application is made, the award covered employees
for the instrument under subitem (10), viewed as a group, would be better off overall if
the instrument applied to the employees than if the relevant modern award or awards
referred to in that subitem applied to the employees.
[9] Under subitem (10) of item 20A, ‘award covered employees’ for a collective
agreement-based transitional instrument are those employees covered by the instrument who,
at the time an extension application is made under subitem (4), are covered by one or more
modern awards that are in operation in relation to the work to be performed under the
instrument, and are employed at that time by an employer who is covered by the instrument
and the modern award(s).
[10] It is not in dispute that the employees of Kirinari covered by the Agreement were, at
the time the extension application was made, covered by the Social, Community, Home Care
and Disability Services Industry Award (SCHADS Award) which was in operation in relation
to the work to be performed under that Agreement and were employed at that time by an
employer covered the agreement and that award.
Grounds for the Application
[11] The Applicant advances the following grounds in support of its application:
http://www.austlii.edu.au/au/legis/cth/num_act/fwlajbpa2022516/
http://www.austlii.edu.au/au/legis/cth/num_act/fwlajbpa2022516/
http://www.austlii.edu.au/au/legis/cth/num_act/fwlajbpa2022516/
[2023] FWCFB 158
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(i) The Applicant contends that employees would be better off overall if the
Agreement continued to apply to them than if the relevant modern award
applied.
(ii) The Agreement contains several entitlements that are superior to those
provided by the SCHADS Award.
(iii) The Applicant submits that the criteria in subitem (9) are met, and further, that
it is appropriate to extend the Agreement for the following additional reasons:
a) The Applicant has consulted with its members covered by the Agreement
and the membership have indicated a firm desire to continue to be covered by
it.
b) A review of the National Disability Insurance Scheme (NDIS) is currently
underway and due to provide a final report in October 2023. The outcome of
that review may change the bargaining position of the covered employees. For
this reason, it is appropriate to extend the coverage of the Agreement to allow
the parties to consider bargaining after accounting for any changes resulting
from that review.
[12] In its written submissions, the Applicant also contended that a two-year extension
would be consistent with that sought by Kirinari in respect of two of its other agreements with
substantially similar terms and conditions. On that basis it was argued that it was reasonable
in the circumstances to extend all three agreements by two years to maintain operational
stability and to facilitate a fair and consistent approach to bargaining.
[13] Having regard to the grounds advanced in the application, we propose to determine
firstly whether subitem 6(a) applies by reference to subitem (9). As is noted above, the
Agreement is a collective agreement-based transitional instrument, which satisfies the
requirements of subitem 9(a). The remaining requirement under subitem 9(b) will involve an
assessment of the Agreement as against the relevant modern award and the application of the
better off overall test referred to in that subitem. If we conclude that the award covered
employees, viewed as a group, would be better off overall if the Agreement applied to them,
we will then consider whether it would also be otherwise appropriate to extend the default
period for the Agreement. If we decide the requirements of subitem 6(a) are not satisfied, we
will consider whether it would be ‘reasonable in the circumstances,’ within the meaning of
subitem 6(b), to extend the default period.
The ‘Better Off Overall Test’
A. The Agreement
[14] The Agreement applies to employees of Kirinari who are community support workers
and home care workers (in Victoria and New South Wales), and clerical workers (in Victoria).
It operates to the exclusion of all other awards and previous agreements.3 Community support
workers and clerical workers under the Agreement are engaged in classifications covered by
the Social and Community Services stream in the SCHADS Award (Schedule B) and home
[2023] FWCFB 158
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care workers are engaged in classifications under the Home Care stream in that award
(Schedule E).
[15] The rates of pay provided by the Agreement are set out in clauses 8 to 10 of the
Agreement. Those clauses include pay tables that specify an hourly rate for the various grades
under the three classification streams whether engaged on a full-time or casual basis. The
rates set out in these clauses are all below the current SCHADS Award rates for each of the
equivalent classifications.
[16] Clause 11 of the Agreement describes the mechanism for pay increases. It provides
that in respect of community support workers and clerical workers, the rates are to be
increased by 3 per cent on the first pay period commencing on or after the anniversary of the
certification of the Agreement and that the wage rates in clauses 8 and 9 are paid in
substitution for any safety net increases during the life of the Agreement. In relation to home
care workers, clause 11.3 provides that the rates of pay in clause 10 are to ‘move in concert
with and not fall below’ the relevant state award or any successor to that award.
[17] If wage rates were determined by the terms of the Agreement alone, only the rates
payable to those employees classified as home care workers would have kept pace with
movements in the rates contained in the SCHADS Award. However, the Transitional Act
makes provision for the extension of the base rates of pay provided for in modern awards to
those covered by agreement-based transitional instruments in certain circumstances.
B. The Transitional Act and the Equal Remuneration Order
[18] Schedule 9 of the Transitional Act deals with the base rate of pay for employees to
whom an agreement-based transitional instrument applies after the ‘FW (safety net
provisions) commencement day’4, that is, after 1 January 2010. Item 13 of that schedule
relevantly provides as follows:
13 Base rate of pay under agreement-based transitional instrument must not be less
than the modern award rate or the national minimum wage order rate etc.
(1) If employee is covered by a modern award that is in operation
(a) an agreement-based transitional instrument applies to an employee;
and
(b) a modern award that is in operation covers the employee;
the base rate of pay payable to the employee under the transitional instrument
(the instrument rate) must not be less than the base rate of pay that would be
payable to the employee under the modern award (the award rate) if the
modern award applied to the employee.
(2) If the instrument rate is less than the award rate, the transitional
instrument has effect in relation to the employee as if the instrument rate were
equal to the award rate.
[2023] FWCFB 158
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[19] In relation to this Item, the Explanatory Memorandum for the Transitional Act
provides, under the heading ‘Part 4 – Universal application of minimum wages to employees’,
as follows:
478. This item (together with the continued AFPCS interaction rules in item 22 of
Schedule 3, described earlier) ensure that, on or after FW (safety net provisions)
commencement day all employees are entitled to at least the relevant safety net
minimum wage - from either the relevant modern award, transitional APCS or, if the
employee is award/agreement free, the national minimum wage order.
479. If an agreement-based transitional instrument provides a lesser base rate of
pay, the relevant safety net minimum wage applies.
[20] The effect of this provision is to ensure that any base rates of pay in an agreement-
based transitional instrument that are less than the corresponding rates in the relevant modern
award do not apply and that the instrument rates that do apply are equal to the modern award
rate. There is an equivalent provision in the Fair Work Act 2009 (FW Act) in relation to base
rates of pay in enterprise agreements made under that Act.5
[21] It is also necessary to refer briefly to an equal remuneration order6 (ERO) that was
made by the Fair Work Commission in 2012 and which has application to employers and
employees within the scope of the SCHADS Award. That order covers employers in the
Social, Community and Disability Services Industry (as defined in the order) and their
employees in the classifications listed in Schedules B and C of the SCHADS Award.7 It
provides for the applicable minimum wage in clause 15 of the SCHADS Award, and, in
addition, a Final Equal Remuneration Payment from the first pay period on or after 1
December 2020.
[22] As we apprehend the submission of the Applicant, they contend that the rates provided
for by the ERO should be taken into account and be treated as forming part of the Award rate
for the purposes of the better off overall comparison in subitem 9(b).8 The ASU supported
that submission and said that their members employed by Kirinari receive base rates of pay in
line with the ERO and SCHADS Award.9
[23] In our view it is unnecessary to consider the effect of the ERO in any detail for the
purposes of the better off overall analysis. The relevant comparison to be undertaken under
subitem 9(b) is between the terms and conditions provided for in the Agreement and those
provided for in the SCHADS Award. The increased rates of pay provided for in the ERO
derive from the operation of that order, not because of the operation of the SCHADS Award.
They apply in addition to applicable minimum wage in clause 15 of the SCHADS Award. To
the extent that the rates of pay in the SCHADS Award are less beneficial than those provided
for in the ERO, they are of no effect10 and the rates in the ERO apply. However, the fact that
the additional rates of pay in the ERO apply to at least some employees of Kirinari covered by
the Agreement and the fact that those rates are, as a matter of practice, paid to those
employees, does not advance the BOOT argument because they are not matters that are
dependent on the existence and terms of either the SCHADS Award or the Agreement. Those
additional rates owe their existence to the ERO.
[24] In summary, the rates of pay that are provided for by the SCHADS Award appear in
the award as varied from time to time. The rates of pay provided for by the Agreement are
[2023] FWCFB 158
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those provided for by the agreement itself, but subject to the operation of item 13 of schedule
9 of the Transitional Act referred to above. The effect of item 13 of schedule 9 is that the base
rates of pay that apply to employees of Kirinari employed under the Agreement are no less
than those that apply to the corresponding classifications in the SCHADS Award. The
remainder of our analysis for the purposes of the better off overall comparison is therefore
conducted on that basis, that is, that the base rates of pay in the SCHADS Award and those in
the Agreement, are the same.
C. Other Evidence and Submissions
[25] The Fair Work Commission’s Agreements Team conducted a comprehensive review
of the terms of the Agreement for the purposes of the better off overall analysis. A copy of
that document was provided to the Applicant, Kirinari and the ASU. In summary, the
Commission’s analysis concluded that the award covered employees for the Agreement
viewed as a group, would not be better off overall if the Agreement applied to the employees
than if the SCHADS Award applied. The Applicant and the ASU provided submissions in
response to the matters set out in the Commission’s document. The Applicant submitted that
the overall conclusion reached by the Commission’s analysis was not correct. The ASU
agreed with the conclusion in the Commission’s analysis.
[26] The Commission analysis identified the following less beneficial entitlements in the
Agreement:
For Clerical Workers
(i) The Agreement provides that the spread of hours for clerical workers is 7am to
6:30pm Monday-Friday, but employees are not entitled to a penalty payment
for work outside these hours (Clause 16). Shift and weekend penalties in
clauses 17 and 18 do not apply to clerical workers. For clerical workers
required to work outside of these hours, the award provides the following more
beneficial entitlements compared to the Agreement:
(a) Award dayworkers are entitled to overtime for work performed outside
6am to 8pm Monday to Sunday (clauses 25.2 and 28).
(b) Award dayworkers and shift workers are entitled to penalty rates for all
non-overtime work done on Saturdays and Sundays.
(c) Shift workers are entitled to afternoon and night shift penalties under
clause 29 of the award for regular afternoon and night shifts.
(ii) The award provides a maximum of 10 ordinary hours per shift (clause 25.1(b))
with overtime payable beyond 10 ordinary hours (clause 28). The Agreement
provides no maximum ordinary hours for clerical workers other than providing
that shifts must be no more than 12 hours (clause 16.5(c)) and no overtime is
provided in the agreement for work in excess of 10 hours per day.
(iii) Casual employees are not entitled to overtime outside of 38 hours per week in
the Agreement because there are no overtime entitlements for casuals. The
award provides casuals overtime beyond 38 hours per week (clause 28.1(b)(i)).
[2023] FWCFB 158
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(iv) The Agreement provides a 2-hour minimum engagement for part time and
casual clerical workers. Clause 10.5 of the award provides a 3-hour minimum
engagement for social and community services employees (except when
undertaking disability services work).
For Community Support Workers
(i) The Agreement does not provide an ordinary span of hours for dayworkers.
The award provides an ordinary span of 6am to 8pm Monday to Sunday with
employees entitled to overtime outside of the span (clauses 25.2 and 28).
(ii) The award provides a maximum of 10 ordinary hours per shift (clause 25.1(b))
with overtime payable beyond 10 ordinary hours (clause 28). The Agreement
provides no maximum ordinary hours for these workers other than providing
that shifts must be no more than 12 hours (clause 16.5(c)) and no overtime is
provided in the agreement for work in excess of 10 hours per day.
(iii) Casual employees are not entitled to overtime outside of 38 hours per week in
the agreement because there are no overtime entitlements for casuals. The
award provides casuals overtime beyond 38 hours per week (clause 28.1(b)(i)).
(iv) Clause 17 of the Agreement pays shifts at 112% for permanent employees and
137% for casual employees inclusive of the casual loading. This is less than
the entitlement under the award for permanent employees of 112.5% or 115%
and for casual employees (who also receive a 25% loading in addition to these
shift penalties)
(v) The Agreement provides a 2-hour minimum engagement for these part time
and casual employees. Clause 10.5 of the award provides a 3-hour minimum
engagement for social and community services employees (except when
undertaking disability services work).
(vi) Where applicable, sleepover entitlements appear to be less beneficial than the
award.
For Home Care Workers
(i) The award provides that dayworkers are entitled to overtime for work
performed outside 6am to 8pm on Monday to Sunday (clauses 25 and 28).
Whilst the Agreement provides the general spread of hours for home care
workers is 7am to 8pm on Monday to Sunday at clause 12.3, employees are not
entitled to overtime for work outside these hours. Instead, they are entitled the
following less beneficial entitlements in the Agreement:
• Permanent employees are paid 110% for work after 8pm and before
7am on weekdays compared to overtime entitlements of 150% (first 2
hours) and 200% thereafter under the award.
• Casual employees are paid 130% (inclusive of the casual loading) for
work after 8pm and before 7am on weekdays compared to overtime
[2023] FWCFB 158
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entitlements under the award of at least 175% (first 2 hours) and 225%
thereafter, inclusive of the casual loading.
• Permanent employees are paid 150% flat for work after 8pm and before
7am on a Saturday compared to overtime entitlements of 150% (first 2
hours) and 200% thereafter under the award.
• Casual employees are paid 170% (inclusive of the casual loading) for
work after 8pm and before 7am on a Saturday compared to overtime
entitlements under the award of at least 175% (first 2 hours) and 225%
thereafter, inclusive of the casual loading.
• Casual employees are paid 220% (inclusive of the casual loading) for
work after 8pm and before 7am on a Sunday compared to overtime
entitlements under the award of at least 225%, inclusive of the casual
loading.
(ii) Casual employees are not entitled to overtime outside of 38 hours per week in
the Agreement. The award provides casuals overtime beyond 38 hours per
week (clause 28.1(b)(i)).
(iii) Weekend penalties for casual employees at clause 18 of the Agreement are
170% on a Saturday and 220% on a Sunday both inclusive of the casual
loading. Award provisions at clause 26 are 175% on a Saturday and 225% on a
Sunday both inclusive of the casual loading.
(iv) The award at clause 29 provides a 12.5% loading for any shift which finishes
after 8pm and at or before midnight and a 15% loading for any shift which
finishes after midnight or commences before 6am. These loadings are payable
for all ordinary hours worked on the shifts. If an employee under the
Agreement would be considered an award shift worker, the Agreement
provides less beneficial entitlements of 110% for permanent employees and
130% (inclusive of the casual loading) for only the hours worked by permanent
and casual employees after 8pm and before 7am.
(v) The Agreement provides a 1-hour minimum engagement for these part time
and casual employees (Clause 16.2(h)). Clause 10.5 of the award provides a 2-
hour minimum engagement for home care employees.
(vi) Where applicable, sleepover entitlements appear to be less beneficial than the
award.
[27] The Commission analysis identified a number of entitlements in the Agreement that
were more beneficial than the award including the following:
All employees (clerical workers, community support workers and home care
workers)
Ordinary hour/overtime related entitlements
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(i) If an employee is a shift worker that works to an RDO system and they
have an RDO on a public holiday, they get a substitute day as a public
holiday under clause 20.8 of the Agreement. The award does not
provide this.
(ii) Clause 16.4(c) of the Agreement provides that employees required to
work more than 6 consecutive periods of ordinary duty without 24
hours off get paid 300% until they get 24 hours off. The award does not
provide this entitlement.
Minimum engagements
(iii) The Agreement provides full time employees with minimum
engagements of 2 hours per day whereas the award does not.
Allowances
(iv) Accident pay provided in the Agreement at clause 43 is not provided
for in the award.
Leave Related Entitlements
(v) Permanent employees are all entitled to 5 weeks of annual leave under
clause 31.2. The modern award provides employees with 4 weeks of
leave rather than 5 weeks unless they meet the requirements in clause
31.2 (definition of a shift worker).
(vi) Clause 30 provides the potential for 5 hours study leave per week for
permanent employees when an employee does part time study for an
approved course.
(vii) Clause 31 provides 5 days paid emergency services leave for
permanent employees.
(viii) Employee delegate training leave provided at clause 47 is not provided
for in the award.
(ix) Long service leave entitlements in clause 27 are better than the NES
(the award is silent on long service leave) as it provides for 3 months
long service leave every 10 years, an extra 3 months once 15 years is
reached and then 8 2/3 weeks for every 5 years thereafter.
(x) Employees accrue more sick leave per year under the Agreement when
compared to clause 32/the NES, with employees accruing between 12
to 27 days per year depending on the type of work they perform and
years of service per clauses 24 and 25.
Clerical workers
Ordinary hour/overtime related entitlements
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(xi) The overtime rate on Monday to Saturday for full time employees who
get overtime outside of 76 hours per fortnight (clause 16.1(c)) is 150%
(first 2 hours) and 200% (thereafter) under the Agreement which is
more beneficial than the 150% (first 3 hours) and 200% (thereafter) in
the award at clause 28.1(a).
Community support workers
(xii) The overtime rate on Monday to Saturday for full time employees who
get overtime outside of 76 hours per fortnight per 16.1(c) is 150% (first
2 hours) and 200% (thereafter) under the Agreement which is more
beneficial than the 150% (first 3 hours) and 200% (thereafter) in the
award at clause 28.1(a).
Shiftwork entitlements
(xiii) In some circumstances under the Agreement, employees will receive a
shift penalty where they would not otherwise be entitled to one under
the award. In clause 17 of the Agreement, employees receive a shift
penalty when they have rostered hours of ordinary duty that finish
between 6.00pm and 8.00am or commence between 6.00pm and
6.30am. The circumstances in which a shift penalty is payable under
clause 29 of the award is more limited, however it is noted the award
provides a higher penalty.
Submissions
[28] The Applicant made a number of submissions relating to the Commission’s
comparison between the provisions of the Agreement and the award. They argued that the
analysis had overlooked the fact that clause 10.5 of the award excluded ‘disability services
work’ from the 3-hour minimum engagement period. They said that in this event, the 2-hour
minimum engagement period was the same as the award and should not be counted as a less
beneficial entitlement in the overall assessment. The ASU agreed that for employees engaged
in disability services work, the Agreement provided an equivalent entitlement to the award.
They submitted however that in NSW, Kirinari employed or may employ workers not
engaged in disability services who would be entitled to the 3-hour minimum if the award
applied to them.
[29] The Applicant also argued that the Commission analysis accorded insufficient weight
to the superior leave entitlements provided for by the Agreement and that it adopted an
‘overly pedantic’ approach to the comparison ‘without giving due consideration to the likely
realities of the employment arrangements of the relevant cohort of employees and the
likelihood of particular provisions being utilised and applied.’ The ASU said its members did
not place significant weight on the value of the leave entitlements in the Agreement. They
said that less favourable overtime provisions and lower weekend penalty rates left workers
significantly worse off overall. They submitted that a survey of their members at Kirinari had
indicated that 64.3% reported working shifts of longer than 12 hours and 85% reported
working on weekends and that both of these cohorts had experienced disadvantage because of
the inferior terms of the Agreement.
[2023] FWCFB 158
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Consideration
[30] We turn firstly to the issue relating to the comparison of the minimum engagement
periods. As is noted above, the award provides for a 3-hour minimum engagement period for
social and community services employees (except when undertaking ‘disability services
work’). We note that ‘disability services’ is referred to in the following definition of the
‘social and community services sector’ in Clause 4 of the award:
social and community services sector means the provision of social and community
services including social work, recreation work, welfare work, youth work or
community development work, including organisations which primarily engage in
policy, advocacy or representation on behalf of organisations carrying out such work
and the provision of disability services including the provision of personal care and
domestic and lifestyle support to a person with a disability in a community and/or
residential setting including respite centre and day services (emphasis added)
[31] In our view the scope of the classifications provided for in the Agreement extends to
community support workers and clerical workers who would not necessarily fall within the
exclusion relating to disability support work within the meaning of that expression in the
award. For employees who are so employed, the 2-hour minimum engagement period in the
Agreement can be considered a less beneficial entitlement compared to the award. If we are
wrong about that, we note that this provision is but one a number of matters that need to be
taken into account and even accepting it to be a neutral consideration, we do not believe this
would change the final result of the better off overall assessment.
[32] In accordance with the principles outlined in Suncoast Scaffolding we are required to
undertake a broad evaluative judgment based upon an overall comparison of the terms of the
transitional instrument and the relevant award in its application to the cohort of award covered
employees. We have taken into account each of the various entitlements provided for by the
Agreement and the award, including the superior leave entitlements to which the Applicant
referred. We consider that the inferior provisions of the Agreement in relation to overtime and
weekend and shift penalties in particular weigh against a conclusion that the employees are
better off under the agreement. We are of the view that it is likely that, as at the time the
applications were made, employees under the Agreement, viewed as a group, would not be
better off if the Agreement applied to them than if the award applied.
[33] Consequently, the requirement in subitem 9(b) has not been met, and it is unnecessary
to consider whether it is ‘otherwise appropriate’ to extend the default period under subitem
6(a).
Is an Extension Reasonable in the Circumstances?
[34] As to whether it would be ‘reasonable in the circumstances’ within the meaning of
subitem 6(b) to extend the default period, we note that the Applicant has indicated that it is
likely that bargaining for a new agreement will commence before 6 December 2023 and that
this is a view shared by Kirinari. The Applicant also submitted that bargaining is likely to be
logistically and industrially complex given that Kirinari has two other zombie agreements that
are due to expire on 6 December 2023.
[2023] FWCFB 158
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[35] The ASU submitted that it had invited Kirinari to commence bargaining for a
replacement agreement and that it believed that it was possible to negotiate such an agreement
before the sunsetting of the existing zombie agreements. They noted that it was the wish of all
parties to negotiate a single consolidated agreement to cover employees in New South Wales
and Victoria.
[36] The Applicants also pointed out that a review of the National Disability Insurance
Scheme is currently underway and is due to report in October 2023. They said the final report
of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with a
Disability (Royal Commission) is due by 29 September 2023. They contended that the
outcome of the NDIS Review and the recommendations arising from the Royal Commission
may change the bargaining position of the covered employees and/or Kirinari and that
bargaining should not formally commence until after the final reports are published as this
could be prejudicial to the parties.
[37] The Applicant submitted that if the employees were to revert to the Award because of
the automatic sunsetting of the Agreement during bargaining for a replacement agreement, it
would create a chaotic and uncertain industrial environment. It would also be an unreasonable
burden on Kirinari’s operations as Kirinari would be required to overhaul its industrial and
payroll arrangements for an indefinite and potentially short-lived period of time. They
submitted that this would likely have a hindering and delaying effect on any bargaining
occurring at the time of the automatic sunsetting.
[38] We are conscious that complications can arise in circumstances where parties are
seeking to consolidate multiple agreements into a single instrument. More time may be
required to finalise an agreement in this case. We also note the unusual circumstances
involving two trade unions with different industrial coverage in different states. On the other
hand, there are considerations that weigh against an extension. The parties have been on
notice since at least late 2022 that the Agreement was likely to cease to operate on 6
December 2023, but beyond preliminary discussions, have not formally commenced
bargaining for a replacement agreement. Moreover, our conclusion that employees as a group
are not better off overall under the Agreement weighs heavily against an extension of the
default period. Employees should not be disadvantaged by the continuing application of such
an agreement.
[39] On balance, we are of the view that it is reasonable in the circumstances to extend the
default period but that the extension should be of a limited duration only. We consider that a
4- month extension will allow sufficient time for meaningful negotiations to occur for a
replacement agreement.
Conclusion
[40] The default period for the Agreement is extended until 6 April 2024. An order giving
effect to this decision has been published separately in PR766002.
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr766002.pdf
[2023] FWCFB 158
13
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
AG848751 PR766000
1 The application as filed sought an extension of 4 years. The Applicant subsequently submitted that the extension should be
for 2 years only.
2 [2023] FWCFB 105 (‘Suncoast Scaffolding’).
3 Clause 1.3.
4 See Schedule 2, Item 2 of the Transitional Act.
5 Section 206.
6 PR 525485, 22 June 2012.
7 See 4.1 of the Order.
8 Submissions paragraph 7.
9 Submissions paragraph 8.
10 Section 306 FW Act.
OF THE FAIR WORK L MISSION THE SEA
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb105.pdf
