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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
(AG2023/2515)
FAMILY BASED CARE DIRECT CARE WORKER EMPLOYEE
COLLECTIVE AGREEMENT 2009
Health and welfare services
DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT ROBERTS
DEPUTY PRESIDENT SLEVIN
SYDNEY, 17 OCTOBER 2023
Application to extend the default period for the Family Based Care Direct Care Worker
Employee Collective Agreement 2009
Introduction
[1] The Health Services Union, Tasmania Branch (HACSU) has applied under item 20A(4)
of Sch 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
(Cth) (Transitional Act) to extend the default period for the Family Based Care (North) Inc.
Direct Care Worker Employee Collective Agreement 2009-2012 (the Agreement) for a period
of four years. The Agreement covers employees engaged in classifications that would now be
covered by the Social, Community, Home Care and Disability Services Award 2020.
[2] The application to extend the Agreement was made on 26 July 2023.
[3] The Agreement is a collective agreement-based transitional instrument within the
meaning of subitem 2(5)(c) of Schedule 3 of the Transitional Act which continued to apply to
employees of Family Based Care Association (Northern Region) Inc (Family Based Care)
because of item 3 of Schedule 3. Family Based Care was purchased by Integratedliving
Australia Ltd (Integratedliving) in 2014. Integratedliving is the current employer of 40
employees covered by the Agreement and does not oppose the application.
[4] The Transitional Act was amended by the Fair Work Legislation Amendment (Secure
Jobs, Better Pay) Act 2022 to provide for the automatic termination of all remaining transitional
instruments. Pursuant to subitem 20A(1) and (2) of Sch 3 of the Transitional Act, the Agreement
will terminate on 6 December 2023 unless it is extended under subitems 20A(6) or (11)(e). The
main features of item 20A of Sch 3 of the Transitional Act are described in detail in the Full
Bench decision in Suncoast Scaffold Pty Ltd1 and we rely upon what is said in that decision.
[2023] FWCFB 190 [Note: A copy of the zombie agreement to which this
decision relates (AC324212) is available on our website.]
DECISION
AUSTRALIA FairWork Commission
/documents/agreements/approved/ac324212.pdf
[2023] FWCFB 190
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[5] The application is made under subitem (4)(c). Under subitem (6), the Commission is
required to extend the default period for an Agreement for a period of no more than 4 years if
the Commission is satisfied that subitem (7), (8) or (9) applies and it is otherwise appropriate
in the circumstances to do so; or it is reasonable in the circumstances to do so.
[6] HACSU relies on subitem (9) which applies if the application relates to a collective
agreement based transitional instrument and 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. We refer to this
as the better off overall test or BOOT.
[7] The relevant instrument under subitem (10) is the Social, Community, Home Care and
Disability Services Award 2020 (the Award).
Background
[8] The matter was listed for directions on 4 August 2023. With the consent of HACSU, the
Commission’s Agreements Team prepared a BOOT analysis of the terms of the Agreement
relative to the Award.
[9] On 14 August 2023, the Commission provided HACSU and Integratedliving with the
Commission’s analysis.
[10] HACSU filed submissions regarding the BOOT analysis, further submissions regarding
Item 20A of Schedule 3 to the Transitional Act, and Annexures including witness statements
and a guidance document on the provision of funding relating to Stage 2 of the Aged Care Work
Value Case prepared by the Australian Government. No submissions were received from
Integratedliving.
[11] We are required to apply a two stage test. First, whether we are satisfied the employees
will be better off overall if the Agreement does not sunset. Second, if we are satisfied, whether
it is appropriate in the circumstances to extend the default period. If the test is satisfied, we will
need to determine how long to extend the default period.
Better Off Overall
[12] Arising from the Commission’s analysis and the submissions from HACSU, we note
the following matters relevant to the BOOT.
Wage Rates
[13] Clause 4.2 of the Agreement sets out the rates of pay which, in accordance with clause
4.2(d), are to be increased in accordance with the annual pay rate decisions by the Australian
Fair Pay Commission or equivalent body.
[14] The Commission’s analysis found that the rates of pay in the Agreement are below the
Award. In those circumstances item 13, Sch 9 of the Transitional Act operates such that the
base rates of pay in the Agreement are deemed to be the same as the Award.
[2023] FWCFB 190
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[15] HACSU submitted that the Australian Government guidance document on the provision
of funding relating to Stage 2 of the Aged Care Work Value Case results in the employees under
the Agreement being paid in excess of the Award. This may be the case, but for the purpose of
applying subitem 20A(9) of Sch 3 the Commission is required to consider the rates in the
Agreement against the rates in the Award. The guidance document may set actual rates but as
the Full Bench has observed on a number of occasions the exercise here is one of comparing
the rates payable under the industrial instruments2.
[16] We proceed on the basis that, for the purpose of the BOOT, the rates in the Agreement
are the same as the Award and the employees will not be better off in terms of wages payable
under the Agreement if it remains in place.
Entitlements
[17] The Commission’s analysis was that entitlements in the Agreement to Sunday and
public holidays penalties and annual leave loading (other than for shiftworkers) are also the
same as the Award.
[18] The analysis identified the following more beneficial Agreement terms:
• Long service leave accrues on the basis of 13 weeks leave after 10 years of continuous
service. The Award is silent in relation to long service leave so the entitlement for
Award based employees is that provided for in Long Service Leave Act 1976 (Tas),
which is 8 and two-thirds weeks leave after completion of 10 years of continuous
service.
• Greater sleepover allowance of $70 compared to $55.89 under the Award. However,
under clause 25.7(e) of the Award employees are paid at overtime rates where required
to perform work during a sleepover shift with a minimum one-hour payment. Under
clause 4.4(e) of the Agreement employees are only entitled to payment where the
employees’ sleep is interrupted three or more times or for a total period of 2 or more
hours. These matters may cancel out the more beneficial allowance.
• Three days compassionate leave, compared to two days under the Award which refers
to the entitlement under the Fair Work Act 2009 (FW Act). However, compassionate
leave under clause 5.3 of the Agreement is limited to the death or near death of a relative
and does not extend to miscarriage as otherwise provided in the Award and the FW Act.
[19] The Commission’s analysis identified a number of areas where the Agreement was less
beneficial than the Award including in relation to minimum engagements, casual loading, shift
penalties and overtime, the lack of a definition of shiftworker for the purpose of additional
annual leave, the absence of allowances, the provision of a lower per kilometre travel
allowance, fewer penalties and other safeguards for matters such as interrupted sleep on
sleepovers, and less generous provisions where client cancellation occurs.
[20] HACSU’s submission disagreed that the Agreement was less beneficial in relation to
minimum engagements and travel allowance. HACSU also pointed to a number of benefits in
the Agreement including non-monetary benefits such as procedures for participation in
performance reviews and management, clear disciplinary procedures, identified safe work
[2023] FWCFB 190
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practices, protection of privacy, clear position descriptions, rights to training and support, the
provision of client care plans, access to vaccinations, occupational and health and safety rights
such as smoke free working environments, rights to participate in occupational health and safety
issues more broadly, and clear processes for accident and incident reporting.
[21] HACSU also submitted that many of the matters identified in the BOOT analysis, where
the Agreement provides less favourable entitlements to the Award, do not apply to employees.
Out of the 40 employees who are covered by the Agreement, only one is a casual. The part-
time employees covered by the Agreement have been employed for more than a decade so the
Award protections for part-time employees which require Integratedliving to agree with new
employees on guaranteed hours and a regular pattern of work do not apply. Employees do not
undertake sleepovers or 24-hour shifts and cannot be compelled to work overtime or work shift
or weekend hours. Matters such as 24-hour shift rates, overtime afternoon and night shift rates
and many of the allowances therefore do not have application to the employees.
Otherwise Appropriate
[22] HACSU submits that its members have instructed it that employees want the conditions
contained in the Agreement to be retained beyond the default period on the basis that the
Agreement provides important benefits above the Award. This is supported by three witness
statements from employees and a petition signed by 17 employees.
[23] HACSU wrote to Integratedliving on 28 April 2023 proposing that the parties
commence bargaining for a replacement agreement. Integratedliving responded by stating ‘We
will further consider your proposal for an enterprise agreement, particularly in light of the
impending sunset of the Family Based Care Direct Care Worker Collective Agreement 2009.’
[24] On 11 May 2023, HACSU wrote to Integratedliving about a number of issues. Included
in the correspondence was the following request: ‘We note that you are considering our
proposal for enterprise agreement to cover Tasmania although would be grateful if you could
advise asap. Our Agreement based members are keen to protect certain terms of that Agreement
so we will make application for that Agreement to continue beyond the proposed sunset unless
a new EBA is resolved for that time.’ Integratedliving replied about a number of other matters
but did not confirm that it would agree to commence bargaining for a replacement agreement.
[25] On 22 May 2023, HACSU responded by stating ‘It appears that by omission,
Integratedliving is not agreeing to commence bargaining for a Tasmanian EBA. If we are
incorrect about that, please advise.’
[26] It is evident that Integratedliving has neither agreed to bargain with HACSU for a
replacement enterprise agreement nor has it initiated bargaining with employees. HACSU states
that its members report, that Integratedliving’s management has indicated to employees that
come the sunset of the Agreement, the transferring employees will revert to the Award and
more beneficial conditions (including a greater long service leave entitlement) will be lost.
[27] HACSU submitted the purpose of the sunset provision in the Transitional Act was to
either cause adverse terms and conditions to expire or to encourage parties to bargain to update
old terms and conditions. The purpose was not to see employees lose long standing and
important more beneficial conditions of employment or for employers to deliberately eschew
bargaining in order to benefit financially by reversion to the Award.
[2023] FWCFB 190
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[28] The current application for extension of the default period for four years will mean
transferring employees that obtain the benefit of a more beneficial long service leave
entitlement will be able to see that entitlement crystallise and be able to take advantage of the
higher entitlement, enshrine the continuation of other more beneficial entitlements, and
encourage Integratedliving to agree to bargain with HACSU for a replacement enterprise
agreement.
[29] HACSU also made submissions going to subitem 6(b) that it is ‘reasonable in the
circumstances’ to extend the default period. HACSU submitted that the Commonwealth
Government's revised funding arrangements in response to the decision in the Aged Care Work
Value Case impact both Award-based and Agreement-based employees. Despite the
Commission’s analysis, HACSU submits the actual rates of pay under the Agreement have been
mandatorily increased by operation of the Government’s guidelines arising from the funding of
the Aged Care Work Value Case.
[30] HACSU submits it is reasonable in the circumstances to extend the life of the Agreement
because:
(a) Support Workers would risk a considerable drop in actual pay to Award levels (for
example, an employee employed as a CSA Level 2b Grade 2 worker currently paid
$34.50 per hour (base wage) would, under the equivalent level in the Award (Level
4.1) be paid $32.85.
(b) Long term employees have qualified or will imminently qualify for Long Service
Leave and be eligible for 13 weeks long service leave pursuant to the Agreement and
not 8.666 weeks pursuant to the Long Service Leave Act 1976.
(c) The employees want the Agreement to continue.
(d) The employees wish to bargain but Integratedliving has eschewed bargaining as it
prefers employees reverting to the Award.
Consideration
[31] As noted above, the application relates to a collective agreement-based transitional
instrument which satisfies the requirements of subitem 9(a). In relation to the better off overall
criterion in subitem 9(b), the Full Bench in Suncoast Scaffold said:2
[15] The requirement for the better off overall criterion in subitem 9(b) to be assessed
by reference to the award covered employees ‘viewed as a group’ appears to allow for
the possibility that the criterion may be satisfied, notwithstanding that some individual
employees are not better off overall than under the relevant award, as long as there is a
discernible advantage for the employees considered as a collective. Further, there only
needs to be satisfaction as to the ‘likelihood’ of such a discernible collective advantage;
that is, it only needs to be probable rather than certain. Taking these matters together, it
is apparent that the better off overall criterion is less stringent that the BOOT in s 193
of the FW Act. However, beyond these broad observations, subitem 9(b) discloses no
[2023] FWCFB 190
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methodology as to how the criterion is to be applied. All that can be said is that a broad
evaluative judgment is required 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.
[32] HACSU submits that for the purposes of the BOOT analysis, the Commission should
have regard to the Government’s funding guidance which requires Integratedliving to increase
the wages for Agreement based employees by the same amounts paid to Award employees.
Although we accept that it may be a condition of funding for Integratedliving to pay specific
rates to employees, these rates are not incorporated into the Agreement and as such are not
relevant to the BOOT analysis.
[33] In the circumstances, we have considered the BOOT analysis on the basis that rates of
pay under the Agreement are the same as the Award. We note that the most significant benefit
under the Agreement is long service leave which accrues on the basis of 13 weeks leave rather
than 8 and two third weeks leave after 10 years of continuous service if the Award applied. As
the Agreement applies to employees whose employment transferred to Integratedliving in 2014,
all the employees covered by the Agreement will have achieved at least ten years’ service by
2024 and be eligible for the higher long service leave entitlement under the Agreement. We
also note the evidence from three employees which confirms that short periods of engagement
are common and that these are always paid pursuant to the minimum engagement method in
the Agreement which is more favourable than the Award. We also consider that the non-
monetary benefits in the Agreement make the employees better off under the Agreement.
[34] Taking into account these benefits and the fact that the aspects of the Agreement which
are less favourable to employees compared to the Award do not apply to the employees, we are
satisfied that it is likely that, as at the time the application is made, the employees viewed as a
group would be better off overall if the Agreement applied to the employees than if the Award
applied to the employees.
[35] Having determined that subitem (9) applies, we are now required to consider whether it
is otherwise appropriate in the circumstances to extend the default period for the Agreement.
[36] While the Government’s requirement, arising from the Aged Care Work Value Case
decision, that Integratedliving pay higher rates to employees covered under the Agreement is
not relevant to the BOOT, it is in our view relevant to whether it is otherwise appropriate to
extend the default period. HACSU’s evidence shows that employees are currently paid higher
hourly rates than the Award and it appears that their pay will be reduced if the Agreement is
terminated.
[37] That matter combined with the loss of more favourable long service leave and other
entitlements, the wish of the employees for the Agreement to continue while bargaining for a
replacement agreement occurs, and the lack of evidence that extending the default period will
cause Integratedliving any financial difficulty or affect the viability of Integratedliving’s
business lead us to conclude that it is appropriate in all the circumstances to extend the default
period.
[38] Having found that we should extend the default period under subitem (6)(a) we do not
need to consider the matters raised by HACSU under subitem 6(b).
[2023] FWCFB 190
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[39] HACSU seeks an extension of four years. We have discretion in relation to the length
of the extension and are not bound to grant the period of extension sought in the application,
which is the maximum period.3
[40] As observed by the Full Bench in Applications to extend the default period for the One
HPA Certified Agreement 2004-2007, the EDS People Agreement 2002 and the Alcatel Lucent
Employment Partnership Agreement 2009 (One HPA, EDS and Alcatel Lucent),4 the default
position of the statutory scheme to automatically terminate transitional instruments on 6
December 2023 suggests a policy preference for employees covered by transitional instruments
to be regulated by instruments made under the FW Act. Although there is no evidence that
Integratedliving proposes to commence or engage in bargaining for a replacement agreement,
despite requests that it do so from HACSU, there are avenues available for HACSU to secure
the employees’ conditions in a new enterprise agreement, including by applying for a majority
support determination under s.236 of the FW Act.
[41] We consider that it is similarly appropriate to extend the default period for the
Agreement here to enable bargaining to occur for a replacement agreement.
[42] As to the length of the extension, in ISS Health Services Pty Ltd,5 the Full Bench ordered
an extension of the default period until 6 December 2024 for the Tempo Health Support Services
Enterprise Agreement 2004. In that case, the employer had issued a notice of representational
rights (NERR). The Full Bench accepted that bargaining would involve some complexity
because the Agreement covered a number of different sites and a diverse range of
classifications, and pay rates were linked to a South Australian industrial instrument. A previous
attempt at bargaining lasted for an extended period and did not succeed. The Full Bench noted
there that an extension would allow a period of approximately 18 months from the notification
time for the parties to reach an agreement and have it approved, and in the event that the parties
run into difficulties in bargaining, they may access the assistance of the Commission under
s.240 of the FW Act. Further, as a last resort, the parties may seek an intractable bargaining
declaration, leading to arbitration by the Commission pursuant to s.235 of the FW Act.6
[43] In One HPA, EDS and Alcatel Lucent, the Full Bench ordered an extension of the default
period until 1 August 20267 because the employer was not proposing to commence bargaining
for a replacement enterprise agreement and it may be necessary for the employees to take a
number of steps to facilitate this occurring.
[44] The bargaining in the matter referred to above is complicated by a number of factors
including the number of employees, the desire to replace a number of enterprise agreements
with a single agreement and the fact that there will be more than one modern award
underpinning the bargaining.
[45] In the current matter, we believe an extension of 18 months from the end of the default
period is warranted. Bargaining has not commenced. Integratedliving has not agreed to bargain.
The objects of the FW Act include at s.3(f) an emphasis on enterprise‑level collective
bargaining underpinned by simple good faith bargaining obligations. The FW Act’s bargaining
provisions are complex. They do, however, provide parties with access to bargaining through
majority support determination under s.236, the resolution of disputes that arise in bargaining
under s.240, good faith bargaining orders under s.230, protected industrial action as defined in
s.408, or, if necessary, the use of the intractable bargaining provisions in s.235. If it is necessary
[2023] FWCFB 190
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for the parties here to have access to some or all these provisions, and given Integratedliving’s
current approach, it may well be necessary, this will take time.
[46] However, once bargaining has commenced, we believe that the task of negotiating a
replacement agreement will be less complex than the replacement of the Agreements in One
HPA, EDS and Alcatel Lucent and ISS Health Services Pty Ltd, given that there are a small
number of employees and only one Agreement and one modern award involved. We believe
that in all of the circumstances, an 18 month period from the end of the default period is an
appropriate time for the parties to take the necessary steps to secure the employees’ conditions
in a new enterprise agreement.
[47] The default period for the Agreement is extended to 6 June 2025. Orders to give effect
to this decision will be published separately.
[48] The Agreement is published, in accordance with subitem 20A(10A)(c), as an annexure
to this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
AC324212 PR767346
1 Suncoast Scaffold Pty Ltd [2023] FWCFB 105
2 See for example All Seasons Carpet Cleaning Collective Agreement [2023] FWCFB 158, [23]; Drilled Foundations
Contracting Pty Ltd and CFMEU Collective Union Agreement 2007 and the Piled Foundations Contracting Pty Ltd and
CFMEU Collective Union Agreement 2007 [2023] FWCA 3011, [40]; Payfam Enterprise Pty Ltd T/A Ravenshoe IGA
Everyday [2023] FWCFB 173, [45]
3 Suncoast Scaffold Pty Ltd [2023] FWCFB 105, [18].
4 [2023] FWCFB 137, [34]
5 [2023] FWCFB 122
6 Ibid, [7].
7 [2023] FWCFB 137, [35]
OF THE FAIR WORK L MISSION THE SEA
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb105.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb158.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwca3011.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb173.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb105.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb137.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb122.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb137.pdf
