1
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 7, Item 30(4) - Application to extend default period for enterprise agreements made
during the bridging period
Bible College Of South Australia Inc T/A Bible College Sa
(AG2023/1575)
BIBLE COLLEGE SA ENTERPRISE AGREEMENT 2009
Clerical industry
DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT ROBERTS
DEPUTY PRESIDENT SLEVIN
SYDNEY, 5 OCTOBER 2023
Application to extend the default period for Bible College SA Enterprise Agreement 2009
[1] Bible College of South Australia Inc (Applicant) has applied under item 30(4) of
Schedule 7 to the Fair Work (Transitional Provisions and Consequential Amendments)
Act 2009 (Cth) (Transitional Act) to extend the default period for the Bible College SA
Enterprise Agreement 2009 (Agreement, or the zombie agreement). The Applicant
originally sought an extension for a period of four years until 6 December 2027. The
Applicant subsequently sought a reduced extension period to 30 June 2024.
[2] The Agreement was made during the ‘bridging period’ as defined1 in the Transitional
Act and approved under the Fair Work Act 2009 (Cth) (FW Act) on 22 February 2010.2
Agreements of this kind are one of a number of different types of agreements that are
commonly referred to as ‘zombie agreements.’
[3] The Agreement applies to the Applicant and its employees engaged as teaching staff
and general staff at the Applicant’s College in South Australia.3
[4] The main aspects of the statutory framework for applications for the extension of
zombie agreements were detailed in the Full Bench decision in Suncoast Scaffold Pty Ltd.4
The Full Bench there dealt with an application to extend a ‘WR Act agreement’ under item
20A of Sch 3 to the Transitional Act. The terms of item 20A of Sch 3 are relevantly the same
as item 30 of Sch 7. The Full Bench’s analysis of those provisions applies equally to item 30
of Sch 7. It is not necessary to repeat that analysis here.
[5] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth)
(SJBP Act) amended the Transitional Act to include item 30 in Sch 7. Item 30 provides for
the sunsetting of remaining enterprise agreements made during the bridging period on 6
December 2023, unless extended by the Commission. Subitem 30(6) provides that where an
[2023] FWCFB 183
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/
[2023] FWCFB 183
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application is made under subitem 30(4) for the period to be extended, the Commission must
extend the default period for a period of no more than four years if either:
(a) subitem (7) or (8) applies and it is otherwise appropriate in the circumstances to do
so; or
(b) it is reasonable in the circumstances to do so.
[6] Subitem (7) applies where the application is made at or after the notification time for a
proposed enterprise agreement that will cover the employees and bargaining for the proposed
enterprise agreement is occurring. No reliance was placed on this subsection by the Applicant.
[7] The present application was advanced on the basis that subitem (8) applies. That
subitem applies if it is likely that at the time the application is made, the relevant employees
covered by the Agreement would be better off overall if the Agreement continued to apply
than if the relevant modern award referred to in subitem (9) applied to the employees. The
relevant modern award in this case is the Educational Services (Post-Secondary Education)
Award 2020 (Award).
Grounds for the Application
[8] The Applicant contended that the employees of the Applicant would be better off
overall if the zombie agreement continued to apply, than if the Award applied. The Applicant
said that bargaining for a new agreement will take place in 2024 and would be completed
before the date of the proposed extended default period. The Applicant pointed out that some
key staff were on sabbatical leave and would return in the latter half of 2023 and the first half
of 2024 and that bargaining would move forward after that.
Better Off Overall Analysis
[9] The Fair Work Commission’s Agreements Analysis Team prepared a written
assessment of the Agreement for the purpose of comparing the wages and entitlements with
those contained in the Award. The assessment took account of a number of undertakings that
were given to the Commission at the time the Agreement was approved. A copy of this
analysis was provided to the Applicant who was given an opportunity to make further
comments or submissions. The Applicant did not seek to engage directly with the analysis,
but provided the Commission with updated material as to wages that are currently paid to
employees covered by the Agreement and some background information as to the history of
the rates and conditions that have applied in practice to those covered by the zombie
agreement since it was made.
[10] The Agreement provides for a pay schedule for 14 classifications setting out the rates
of pay for each of those classifications and phasing in annual increases for them until 1 July
2014. The rates of pay provided for by the Agreement were the subject of an undertaking
when the Agreement was approved in 2010. As a result of the undertaking, an amended
schedule of rates was to apply in lieu of the schedule in the Agreement. There was a further
undertaking to provide for annual increases to the rates in the Agreement (as amended by the
first undertaking) based on National Wage determinations of, as it then was, Fair Work
Australia.
[2023] FWCFB 183
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[11] According to the Commission’s analysis, when the various increases arising out of
annual wage review processes are applied to the Agreement rates, the result is that employees
in some classifications are entitled to receive rates of pay that are up to 18.76% above the
corresponding Award rates while others receive rates that are up to 13.01% below award
rates.
[12] For the purposes of comparing base rates of pay between the Agreement and the
Award, we have taken into account the operation s.206 of the FW Act which relevantly
provides:
206 Base rate of pay under an enterprise agreement must not be less than the
modern award rate or the national minimum wage order rate etc.
If an employee is covered by a modern award that is in operation
(1) If:
(a) an enterprise agreement 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 agreement (the agreement 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 agreement rate is less than the award rate, the agreement has effect in relation to the
employee as if the agreement rate were equal to the award rate.
[13] The zombie agreement includes a number of less beneficial entitlements compared to
the Award. The Agreement makes no provision for the payment of overtime rates for work
performed outside of ordinary working hours. The Award provides for the payment of penalty
rates for overtime in the case of full-time and part-time employees of 150% of the minimum
hourly rate for the first two hours and 200% thereafter, and in the case of casual employees an
additional 25% casual loading.
[14] The Agreement makes limited provision5 for ‘time off in lieu’ for additional hours
worked up to a maximum of one day6 but there is no provision for the payment of unused
time in lieu, either during employment or on termination. The Award allows for employees to
be paid out for time in lieu at their request where the leave has accrued but has not been taken
within 6 months of accrual, or on the termination of employment, with such payments being
paid at overtime penalty rates.7
[15] The Award makes provision for lectures, tutorials and contact hours of teaching to
count as additional time worked to take account of preparation, assessment and consultation.8
The Agreement makes no such provision.
[16] The Agreement provides the reimbursement of fares and vehicle travel but otherwise
makes no provision for the payment of allowances. The Award provides for several
allowances including first aid, clothing, laundry, meal and living away from home
allowances, which may be applicable to employees covered by the Agreement.
[17] The Agreement does not provide for paid rest breaks. The Award provides for two
paid rest breaks per day for each employee.9
[2023] FWCFB 183
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[18] There are some more favourable provisions in the Agreement, notably a narrower
span of ordinary hours (8.30am to 5.30pm on weekdays compared to 7am to 7pm under the
Award) and a minimum engagement period of 3 hours for all employees whereas for casual
teaching/tutoring staff the minimum period is 2 hours under the Award. There is an additional
week of annual leave provided for in the Agreement which is paid in lieu of annual leave
loading.
Consideration
[19] In Suncoast Scaffolding the Full Bench observed that the application of the better off
overall test in Item 9 of Item 20A in Schedule 3 required a broad evaluative judgment based
upon an overall comparison of the terms of the transitional instrument and the relevant
award(s) in their application to the cohort of award covered employees. We apply the same
approach here.
[20] Given the above analysis, we are not satisfied that the award covered employees,
viewed as a group, would be likely to be better off overall if the Agreement continued to
apply to them rather than if the relevant modern award applied. The inferior employment
conditions referred to above support this conclusion. We note that to the extent the Agreement
provides more favourable rates of pay, this applies to a limited number of classifications only.
The remaining classifications are disadvantaged by the inferior conditions without the
offsetting benefit of the higher rates of pay. We are not satisfied that the rates of pay, in
combination with the conditions of employment, would make it likely that the employees,
viewed as a group, would be better off overall. Consequently, we conclude that subitem 8 of
item 30 does not apply. It is therefore unnecessary to consider whether it is also otherwise
appropriate in the circumstances to extend the default period.
[21] Although the Applicant did not expressly contend that the default period should be
extended because it was reasonable in the circumstances to do so within the meaning of
subitem (6)(b), we have, for completeness, considered that issue. We are unable to discern
any reason why it would be reasonable in the circumstances to extend the life of the
Agreement. We note that the Applicant has, since at least 2018, been reviewing remuneration
arrangements applying to staff at the College. There was no evidence to suggest that the
continued operation of the Agreement was critical to the operation of the Applicant and there
was an indication from the Applicant that they intend to move as quickly as possible to
finalise a contemporary industrial agreement. There was no evidence from employees to
whom the Agreement applied to support any extension to the life of the Agreement. In the
absence of other relevant considerations supporting the conclusion that it would be reasonable
to extend the Agreement, we consider that an extension here is not reasonable and that the
default period should not be changed.
[22] For the above reasons, the application is dismissed.
[2023] FWCFB 183
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DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
AE874189 PR766848
1 Item 2, Part 1 of Schedule 1.
2 [2010] FWAA 1369.
3 Clause 1.3.
4 [2023] FWCFB 105 at [3]-[18].
5 Clause 8.1
6 See undertaking 1 in approval decision 22 February 2010 op cit.
7 Clause 20.5.
8 Clauses 14.2 and 14.3.
9 Clause 15.3
OF THE FAIR WORK L MISSION THE SEA
https://www.fwc.gov.au/documents/agreements/approved/AE874189.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwaa1369.htm
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb105.pdf
