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Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Sch 3, Item
20A(4)—Application to extend default period agreement‑based transitional instrument
Application by Amity Health Limited T/A Amity Health
(AG2023/4272)
AMITY HEALTH LIMITED EMPLOYEE COLLECTIVE AGREEMENT 2007
DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT SLEVIN
DEPUTY PRESIDENT GRAYSON
SYDNEY, 14 DECEMBER 2023
Application to extend the default period for the Amity Health Limited Employee Collective
Agreement 2007
[1] Amity Health Limited T/A Amity Health (the Applicant) has applied, pursuant to item
20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments)
Act 2009 (Cth) (Transitional Act), to extend the default period for the Amity Health Limited
Employee Collective Agreement 2007 (Agreement). The application seeks to extend the
Agreement for a period of 12 months until 7 December 2024.
[2] The Agreement was made in 2007 and approved under the Workplace Relations Act
1996 (Cth) (WR Act). The Agreement is a ‘WR Act Instrument’ within the meaning of item
2(2) of Sch 3 to the Transitional Act. It is classified by item 2(5)(c)(i) of Sch. 3 as a ‘collective
agreement-based transitional instrument’.
[3] Item 20A of Sch 3 to the Transitional Act provides for the automatic sunsetting of
agreement-based transitional instruments by the end of the default period on 6 December 2023,
subject to the capacity to apply to the Commission for an extension of that period for up to four
years in prescribed circumstances. The agreements to which these provisions apply are known
as zombie agreements. The main features of item 20A of Sch 3 are described in detail in the
Full Bench decision in Suncoast Scaffold Pty Ltd (Suncoast)1 and we rely upon what is said in
that decision.
[4] When an application is made under subitem (4) of item 20A of Sch 3 to the Transitional
Act, the Commission is required, under subitem (6), to extend the default period if the
Commission is satisfied that:
[2023] FWCFB 250
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb250.pdf
[2023] FWCFB 250
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(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.
[5] This application has been made on the basis that subitem (7) applies, and it is otherwise
appropriate in the circumstances to extend the default period. The Applicant did not contend
that either of subitems (8) or (9) applied to the application.
Background and Submissions
[6] The Applicant is based in Western Australia and is a not-for-profit organisation
providing allied health services. The Applicant’s employees covered by the Agreement would
otherwise be subject to the terms of either the Nurses Award 2020 or the Health Professionals
and Support Services Award 2020 (HS Award). The Agreement’s coverage clause at clause 3
provides that it applies to the Applicant and its salaried employees.
[7] The Applicant’s 71 employees are all covered by the Agreement (and any future or
proposed Agreement subject to bargaining) across a broad range of roles and disciplines. In
support of a 12-month extension, the Applicant indicated that it has been receiving advice in
respect of negotiating a new Agreement, and that it understood that a draft Agreement was to
be provided at the commencement of bargaining. The Applicant referred to a concern that its
employees have sufficient time to both understand the terms of, and bargain effectively for, an
agreement to replace the one subject to this application.
[8] The Applicant submitted that it has been working with the Western Australia Chamber
of Commerce Workplace Relations Unit (WACCIWR) to assist in drafting and negotiating a
new agreement since January 2023. The Applicant indicated that WACCIWR had completed a
review of the provisions of the Applicant’s current agreement against both the Nurses Award
2020 and the HS Award. The Applicant said that a draft agreement was being reviewed at the
time of making this application. However, the Applicant did not submit that it had commenced
bargaining for the proposed agreement, no Notice of Employee Representational Rights
(NERR) had been distributed and as a result no bargaining representatives had been nominated.
The Applicant also referred to a proposed timeline for negotiations, with the provision of the
first draft agreement foreshadowed to accompany the NERR to be provided to employees by
email. The Applicant indicated that, one week following the provision of these documents, it
would hold meetings where the terms of the draft agreement would be discussed, allowing
opportunities for staff members across disciplines to provide feedback. The Applicant then
described that within a month of providing the draft Agreement, responses would be ‘collated
and addressed’, and employees would have the opportunity to nominate bargaining
representatives, and negotiations would commence before the final agreement was to be
provided to employees for consensus before its submission for approval to the Fair Work
Commission (Commission). Further than this, the Applicant did not identify any basis for the
Commission to extend its agreement.
[9] The Applicant further indicated that the provisions of the Agreement were closely
aligned to the current provisions of the Fair Work Act 2009 (Cth) (the FW Act). The Applicant
also referred to its organisational policies being updated to reflect ‘recent legislative workplace
[2023] FWCFB 250
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changes’ and claimed that all salaries sat above the minimum wage. It referred to an across-the-
board percentage increase of 5.8% to all employees from 1 July 2023.
Subitem (7) Consideration
[10] The Full Bench in ISS Health Services Pty Ltd2 described the three requirements for
subitem (7) to apply. The first is the requirement that the application is made at or after the
‘notification time’ for a proposed agreement as defined in s.173(2) of the FW Act. The second
is that the proposed agreement must cover the same or substantially the same group of
employees as the zombie agreement. The Full Bench stated that this could be established by
comparing the NERR for the proposed agreement to the coverage clause of the zombie
agreement. Relevantly, the third is that bargaining for the proposed agreement has commenced.
[11] The Applicant lodged its application to extend the default period for the Agreement on
14 November 2023. At Part 2.6 of the application, the Applicant indicated as follows:
In January 2023 legal support from the Chamber of Commerce and Industry WA
Workplace Relations unit was sought to assist in re-draft of a new collective agreement.
This included review against two of the awards we believe may cover our diverse
workforce, being the Nurses Award 2020 and the Health Professionals and Support
Services Award 2020. The diversity of our workforce, a mixed team of predominantly
allied health clinicians, two nurses, and administration support team, has encouraged us
for team cohesion and organisation culture, to continue to work under one agreement
only. To date the work undertaken has been to ensure that the proposed new agreement
will stand well against a BOOT test against the awards. The final draft agreement is
currently being reviewed by the CCIWA lawyer ready for comprehensive review by all
employees. We anticipate receiving this in the coming weeks, but concern [sic] to
provide sufficient time for all staff to provide feedback necessitates this application.
[12] On 23 November 2023, the Commission wrote to the Applicant to seek further material
in support of its application, including a copy of any NERR that had been issued to the
Applicant’s employees at the commencement of bargaining for a new enterprise agreement.
[13] Later that day on 23 November 2023, the Applicant provided further material to the
Commission in response to its request, which included:
(a) a document prepared by the WACCIWR containing its advice following its review of
the Agreement terms against the Better Off Overall Test (BOOT) and assessment of its
compliance against the current provisions of the FW Act;
(b) A BOOT comparison of the Agreement against the Nurses Award 2020;
(c) A BOOT comparison of the Agreement against the HS Award; and
(d) A Microsoft Excel workbook containing the figures for each Award comparison against
the terms of the Agreement.
[2023] FWCFB 250
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[14] The Applicant has received advice that at least one of the support employee
classifications, and at least seven of its professional employee classifications as contained in its
Agreement fall below those in the HS Award.
[15] The remainder of its classifications are above their counterparts in the HS Award or the
Nurses Award 2020. A number of the Agreement provisions are more beneficial than the
minimums provided under the Awards, including:
(a) the majority of the rates of pay;
(b) a maximum 37.5 hours per week (compared to the Awards provisions of 38 hours per
week);
(c) a shorter span of ordinary hours; and,
(d) additional compassionate leave of five days in limited circumstances.
[16] However, many of the agreement provisions are either less beneficial or capable of
improvement, including:
(a) Only a 20% casual loading, compared to the Awards’ 25%;
(b) No minimum engagement for casual staff;
(c) No paid tea breaks;
(d) No annual pay progression;
(e) Inferior higher duty provisions when compared with the Awards;
(f) Comparatively low travel allowances;
(g) Significantly inferior provisions regulating time-off-in-lieu (‘TOIL’);
(h) No provisions for the cashing out of annual leave;
(i) Inferior rates of accrual for annual leave by one week (when compared to the Nurses
Award 2020); and
(j) National Employment Standards (NES) and mandatory Agreement term non-
compliance.
[17] The Agreement provisions do not align with the advisory documents received by the
Applicant and subsequently provided to the Commission by the Applicant in support of its
application, with respect to the comparison of Award and Agreement salaries. This may be
because the Applicant is either paying above the minimum rates provided in the Agreement, or
as a result of the Agreement’s discretionary salary review mechanism. In either case, it is not
[2023] FWCFB 250
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clear on the face of the document or from the documents subsequently provided to the
Commission what the rates payable by the Applicant to its employees currently are.
[18] The advice provided by the WACCIWR was dated 7 June 2023. No further
documentation beyond email correspondence and the supporting documentation set out at [13]
was provided by the Applicant in support of its extension application establishing why it sought
an extension of 12 months to bargain for a new agreement.
[19] The FW Act provides a series of definitions of ‘notification time’ for the purposes of a
proposed enterprise agreement. At s.173(2)(a), it provides that the notification time for a
proposed enterprise agreement is the time when ‘the employer agrees to bargain, or initiates
bargaining, for the agreement’. None of the material before us supports a finding that this
definition or any of the alternative definitions have been met (such as those relating to majority
support determinations or scope orders). The Applicant has indicated that it has yet to
commence bargaining. Accordingly, the application was not made ‘at or after the notification
time for a proposed enterprise agreement’ in accordance with the requirement at subitem (7)(a)
of the Transitional Act. Consequently, we find that subitem (7) does not apply and the default
period cannot be extended pursuant to subitem (6)(a).
Item 6(b) Consideration
[20] As subitem (7) cannot be met, the Commission may consider whether to extend the
default period pursuant to subitem 6(b), requiring a consideration of whether it is otherwise
reasonable in the circumstances to extend the default period. This involves the application of a
broad evaluative judgement.
[21] In Suncoast,3 the Full Bench said:
[17] The ‘reasonable’ criterion in the subitem should, in our view, be applied in
accordance with the ordinary meaning of the word – that is, “agreeable to reason or
sound judgment”. Reasonableness must be assessed by reference to the circumstances
of the case, that is, the relevant matters and conditions accompanying the case. Again,a
broad evaluative judgment is required to be made.
[22] The Agreement was made and approved in 2007. It excludes all other statutes and
instruments, including Awards. Clause 5.1 of the Agreement provides:
The employee shall be engaged in accordance with the terms and conditions set out in
this Agreement. No award, federal or state shall apply to the contracts of employment
for employees under this Agreement.
[23] The Transitional Act provides that the base rates of pay payable under agreement-based
transitional instruments are not to be less than the base rates payable under a modern award that
is in operation and covers an employee.4 The terms of the Agreement in this case represent the
benchmarks created by the legislative scheme under which it came into operation, and that
scheme has long since been superseded. The terms fall short of the safety net standards provided
for by the FW Act, and modern awards made under the FW Act.
[2023] FWCFB 250
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[24] In Peter Frick,5 the Full Bench considered that the default position of the statute to
automatically terminate transitional instruments on 6 December 2023 suggests a policy
preference for employees covered by transitional instruments to be regulated by contemporary
instruments made under the FW Act.6 In Kalfresh Management Services Pty Ltd,7 the Full
Bench expressed the view that where an agreement contains inferior and outdated terms and
conditions, this weighs strongly against a conclusion that it is reasonable in the circumstances
to extend a default period.8
[25] The Applicant does not go so far as to suggest that the BOOT is met. It instead argues
that the terms of employment in the zombie agreement closely align with the FW Act, and that
the Applicant needs 12 months to bargain for a new agreement that has been in progress, at
least in conjunction with assistance provided by the WAICCWR, since January 2023. We do
not accept this argument. The number of beneficial terms in the Agreement compared to the
Awards are relatively limited. In contrast, as set out at [16], the beneficial provisions in the
Awards that the 71 agreement covered employees of the Applicant will miss out on if the
Agreement’s operation is extended are significant in their number and nature. Given the largely
inferior conditions in the Agreement, we think it unlikely that there would be a disadvantage to
employees in a reversion to award conditions prior to the finalisation of a new agreement. This
is a significant factor in our consideration, weighing against the grant of an extension.
[26] Finally, we are not persuaded by the Applicant’s contention that an effective
negotiation process for a new agreement will take 12 months to complete. The Applicant has
already had over 12 months to make arrangements for the sunsetting of the Agreement. The
Applicant has provided documents to the Commission that indicate that the process has been
on foot for at least 11 months. The Applicant has not issued a NERR, and no employee
bargaining representatives have been nominated. No draft agreement has been provided to
employees or to the Commission.
[27] We acknowledge that genuine bargaining takes time. However, the Applicant has had
12 months to negotiate a replacement agreement and has not even commenced bargaining. We
do not consider it sufficiently likely that negotiating a new enterprise agreement would take the
twelve months that the Applicant seeks.
[28] In Qualipac,9 the Full Bench rejected an application for an extension of the default
period in circumstances where an applicant wanted to continue to rely on the inferior terms and
conditions in a zombie agreement. We consider there to be some parallels with the present case.
The Bench in Qualipac said:
[20] We are mindful of the need to ensure that the integrity of the safety net provided
for by the Act and modern awards is not undermined by very old agreements that may
no longer meet contemporary standards.
[29] We have taken into account that the Applicant has taken material steps to commence
bargaining for a new enterprise agreement. We have also factored into our consideration that
the Applicant is seeking and obtaining advice that will assist in drafting terms and bargaining
an agreement to replace the one subject to this application. These factors however do not
convince us that we should extend the life of a zombie agreement that provides for terms and
[2023] FWCFB 250
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conditions that are inferior to the relevant modern award and fails to reflect contemporary
standards.
[30] On balance, we are not satisfied that it is reasonable in the circumstances to extend the
default period of the agreement. The Application is dismissed.
[31] As our decision is to refuse to extend the default period under subitem 20A(6) of Sch 3
and our decision is made after the sunset date in the Transitional Act, subitem (11)(e) provides
that we must extend the default period to the day of this decision or specify a day that is not
more than 14 days after the day of this decision. We have decided that to enable the parties to
make the necessary administrative arrangements to give effect to the sunsetting of the
Agreement the default period is extended until 28 December 2023.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR769432
1 [2023] FWCFB 105.
2 [2023] FWCFB 122 at [4]
3 [2023] FWCFB 105.
4 Item 13 of Sch 9.
5 [2023] FWCFB 137
6 Ibid, [32].
7& Kallium Management Services Pty Ltd As Trustee For The Kalium Labour Trust T/A Kalfresh Pty Ltd [2023] FWCFB
217
8 Ibid, [14].
9 [2023] FWCFB 212
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/2023fwcfb122.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/2023fwcfb217.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb217.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb212.pdf
