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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
Young Men’s Christian Association Of Geelong Inc T/A Ymca Geelong
(The Y Geelong)
(AG2023/4010)
YMCA STAFF COLLECTIVE AGREEMENT 2008 - YOUNG MEN'S
CHRISTIAN ASSOCIATION OF GEELONG INC
Children's services
DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT ROBERTS
DEPUTY PRESIDENT SLEVIN
SYDNEY, 28 FEBRUARY 2024
Application to extend the default period for YMCA Staff Collective Agreement 2008 – Young
Men’s Christian Association of Geelong Inc
[1] Pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009 (Transitional Act), the Young Men’s Christian
Association of Geelong Inc has applied to extend the default period for the YMCA Staff
Collective Agreement 2008 – Young Men’s Christian Association of Geelong Inc (Agreement).
[2] The application is made in accordance with subitem 20A(6)(a) on the ground that the
bargaining is occurring for a proposed enterprise agreement that will cover the same, or
substantially the same, group of employees as are covered by the Agreements (subitem (7)) and
that it is otherwise appropriate to do so. In the alternative, the Applicant relies on subitem
20A(6)(b), that is, that it is reasonable in the circumstances to extend the default period. The
application is to extend the default period until 30 September 2024.
[3] The Full Bench in ISS Health Services Pty Ltd1 described the requirements that must be
met for an application to extend the default period where bargaining for a replacement
agreement is relied upon. The Bench in that matter was dealing with an application under
subitem 26A of Sch 3A of the Transitional Act. The relevant provisions in that subitem are in
similar terms to those in subitem 20A of Sch 3 and we adopt the relevant principles from the
decision.
[4] The requirements for an extension of the default period where bargaining is relied upon
are as follows:
[2024] FWCFB 121[Note: A copy of the zombie agreement to which this
decision relates (AC316189) is available on our website.]
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/document-search/view/3/aHR0cHM6Ly9zYXNyY2RhdGFwcmRhdWVhYS5ibG9iLmNvcmUud2luZG93cy5uZXQvZW50ZXJwcmlzZWFncmVlbWVudHMvSGlzdG9yaWNhbC8yMDA5LzIwMDkvNi9jYWVuMDg1NDA4OTc1LnBkZg2?sid=&q=AC316189
[2024] FWCFB 121
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1. The application must have been made at or after the ‘notification time’ for a
proposed enterprise agreement.
2. The proposed enterprise agreement must cover the same, or substantially the same,
group of employees as the collective agreement-based transitional instrument.
3. Bargaining for the proposed enterprise agreement must be occurring.
[5] We are satisfied that the application was made at or after the notification time for a
proposed agreement and that bargaining is occurring. We are also satisfied on the material
provided that the proposed agreement will cover the same or substantially the same group of
employees as the collective agreement-based transitional instrument. We note that the notice of
employee representational rights that was issued in relation to the proposed agreement shows
that the coverage of the proposed agreement will be wider than the Agreement. However, the
Applicant has advised that the number of employees covered by the Agreement is the same as
the number who are proposed to be covered by the agreement which is the subject of bargaining.
Accordingly, the requirements of subitem 20A(7) are satisfied and we turn to consider whether
it is otherwise appropriate to extend the default period under subitem 20A(6)(a).
[6] The Applicant advised that the terms of the Agreement contain identical terms and
conditions to at least two other YMCA agreements which are not zombie agreements. Those
two agreements continue to operate and will not sunset by operation of the Transitional Act.
The Applicant is currently engaged in bargaining for a single enterprise agreement alongside
two other YMCA Associations (Ballarat and Whittlesea). Bargaining for the Applicant’s
proposed agreement is well advanced. The Applicant said it would be unreasonable for its
employees to be treated differently to those covered by identical provisions by having the
Applicant’s employees revert to the modern awards for the relatively brief period that it will
take to finalise an agreement. The Applicant pointed to the administrative costs of such a
change. The Applicant advised that its expectation was that a new agreement could be finalised
and an application for approval could be made in early 2024.
[7] We accept the Applicant’s submissions and consider that it is otherwise appropriate to
extend the default period in the present circumstances. We note that bargaining is well-
advanced. Employee bargaining representatives have been notified of the application and are
supportive of an extension. Having regard to the Applicant’s submission that there were at least
some terms of the Agreement that are less beneficial than the underpinning awards, we do not
consider it appropriate to extend the Agreement until 30 September 2024. We are of the view
that an extension until 30 June 2024 will provide enough time for the proposed agreement to
be finalised and approved.
[8] Pursuant to item 20A(6) of Sch 3 to the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009 (Cth), we order that the default period for the Agreement
is extended until 30 June 2024.
[9] The Agreement is published, in accordance with subitem 20A(10A), on the Fair Work
Commission’s website.
[2024] FWCFB 121
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DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
AC316189 PR771937
1 [2023] FWCFB 122.
OF THE FAIR WORK L MISSION THE SEA
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb122.pdf
