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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
Application by Catherine Louise Olifent
(AG2023/4773)
DEPUTY PRESIDENT ROBERTS
DEPUTY PRESIDENT SLEVIN
COMMISSIONER ALLISON
SYDNEY, 19 MARCH 2024
Application to extend the default period for the Australian Workplace Agreement between
Catherine Olifent and Navitas Pty Ltd
Introduction
[1] Ms. Catherine Olifent has lodged an application to extend the default period for an
individual agreement-based transitional instrument pursuant to subitem (4) of item 20A of Sch
3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
(Transitional Act). The relevant instrument is an Australian Workplace Agreement (AWA)
made under the Workplace Relations Act 1996 (WR Act). The parties to the AWA are Ms
Olifent and her employer, Navitas Pty Ltd (Navitas). The application is opposed by Navitas.
[2] The main aspects of the statutory framework applicable to this application were detailed
in the Full Bench decision in Suncoast Scaffolding Pty Ltd.1 In short, the AWA, the subject of
the application is an individual agreement-based transitional instrument preserved in operation
by items 2 and 3 of Sch 3 to the Transitional Act. The Fair Work Legislation Amendment
(Secure Jobs, Better Pay) Act 2022 (SJBP Amendment Act) amended the Transitional Act to
provide for, amongst other things, the automatic termination of all remaining transitional
instruments. It did this by adding item 20A to Sch 3 of the Transitional Act.2 The SJBP
Amendment Act refers to transitional instruments as ‘zombie’ agreements.
[3] Item 20A of Sch 3 provides for the automatic sunsetting of remaining agreement-based
transitional instruments at the end of a ‘default period’. The default period is the period ending
on 6 December 2023 unless extended by the Commission. Ms Olifent seeks to have the default
period extended to 6 December 2025.
[4] Subitem (6) of item 20A provides for the extension of the default period. The
Commission is required under subitem (6)(a) 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 subitem (7), (8) or (9) applies and it is otherwise appropriate to do so, or, under
subitem (6)(b), it is reasonable in the circumstances to do so. Subitem (7) is not relevant to the
present matters as it only applies if bargaining is occurring for a replacement agreement.
[2024] FWCFB 165
DECISION
AUSTRALIA FairWork Commission
http://www.austlii.edu.au/au/legis/cth/num_act/fwlajbpa2022516/
[2024] FWCFB 165
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Subitem (9) also does not apply as it relates to collective agreement-based transitional
instruments.
[5] Subitem (8) applies to individual agreement-based transitional instruments where the
employee covered by the relevant instrument would be otherwise covered by an award and it is
likely that as at the time the application is made, the employee would be better off overall if the
agreement continued to apply than if the award applied. Ms. Olifent contends that subitem (8)
applies and it is otherwise appropriate to extend the AWA.
Background
[6] Ms Olifent was employed by South Australian Institute of Business and Technology Pty
Ltd (SAIBT) in 2007. SAIBT is a subsidiary of Navitas. In June 2008, Ms Olifent and SAIBT
entered into the AWA. In 2018, SAIBT’s business transferred to Navitas which became Ms.
Olifent’s employer. By operation of item 7 of Schedule 11 of the Transitional Act and Part 2-8
of the Fair Work Act 2009, Navitas was then covered by the AWA and it continued to regulate
Ms Olifent’s employment. Ms Olifent is the only employee at her workplace covered by an
AWA.
[7] Navitas is part of a business that provides tertiary education services in colleges and
online throughout Australia. It partners with the University of South Australia (UniSA) to
provide foundation studies and pathway programs for students to qualify to enter undergraduate
courses at the University. Ms Olifent is employed in the role of Student and Academic Services
Officer, which is a general staff role. Her ordinary hours of work each week are between 8.30am
– 5.00pm, Monday to Friday. Ms Olifent meets the description of an award covered employee
for the purposes of item 20A. The relevant award is the Educational Services (Post-Secondary
Education) Award 2020 (Award).
[8] There is a disagreement between Ms. Olifent and Navitas about whether it is likely that
she would be better off overall if the AWA continued to apply than if the award applied. The
disagreement centred on the wage rates in the AWA and in particular, what wage increases
applied during the operation of the AWA. The AWA set a base salary in Schedule 1 and that
salary was to increase in accordance with clause 7.4 which provides:
When UniSA pay scales increase due to Enterprise Bargaining or some other method,
so too will your salary.
[9] Ms Olifent is of the view this clause is to be read such that all wage increases for the
University of South Australia Enterprise Agreements must be applied to her rate of pay. Navitas
acknowledges the clause requires a pay increase to be provided to the employee at the same
time as pay increases in the UniSA enterprise agreement but contends there is no obligation to
provide the same increase as the UniSA agreement. Navitas informed us that in practice the
wage rate contained within the AWA has been increased in line with the percentage increase
contained within the UniSA Enterprise Agreement, although this has not always occurred.
[10] We do not agree with Navitas. We consider that the clause should be read to require that
the AWA rate increases at the same rate as the UniSA Enterprise Agreement. We hold that view
because, while it might be said there is some uncertainty in the wording of clause 7.4 read in
isolation, in context it is clear the intention was to link wage increases under the AWA with
wage increases received by UniSA employees. That context appears from a reading of clause 7
[2024] FWCFB 165
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as a whole. Clause 7.1 indicates that the rate of pay in the AWA was based on the equivalent
salary paid by UniSA. Clause 7.2 states that the AWA classification is linked to the appropriate
salary paid at UniSA. When clause 7.4 is read with these provisions it is clear the intention was
that the link between the AWA rate and the UniSA rate upon which it was based was
maintained.
[11] The rate paid to Ms Olifent under the AWA is 44% higher than the Award rate that
would otherwise apply to her employment.
[12] The AWA is largely silent on terms and conditions otherwise set out in the Award. The
AWA contains greater redundancy entitlements for employees with 6 or more years’ service.
The ordinary hours of 37.5 per week are worked within a shorter span of hours than the Award.
The 8 weeks of paid maternity leave is also more beneficial than the Award, although we note
the clause permits the employer to recover this where the employee does not return to the
workplace for at least a term after taking the leave.
[13] The AWA contains the following less beneficial terms:
• No overtime is payable for additional hours worked before or after the span of
ordinary hours, or for more than 37.5 hours per week.
• The Agreement is silent with respect to work engaged in on weekends. Under the
Award such work is paid for at penalty rates.
• The Agreement is silent with respect to shift penalties. Under the Award, such work
is paid for at penalty rates.
• Reduced redundancy entitlements for employees with less than 6 years’ service.
• With respect to work engaged in on public holidays, clause 14 provides TOIL may
be taken at a mutually agreed time, however no further information is provided as
to the ratio at which the TOIL is accrued. Under the Award, work engaged in on a
public holiday is paid at 250% with a minimum 4-hour engagement.
• The AWA is silent in relation to all allowances.
[14] Ms Olifent acknowledges that her rate of pay is above the Award, and that she is
engaged to work Monday to Friday 8:30am – 5:00pm. Navitas has never required her to work
on weekends, however, she has volunteered several times to work on a weekend due to projects,
student events and university open days. Navitas has never required her to work on a public
holiday or for a significant amount of overtime. When overtime is worked, Ms Olifent receives
time off in lieu.
[15] Navitas informed us that should the AWA sunset, Ms Olifent’s current salary rate will
not reduce. Navitas has issued a written offer of an annual salary that is higher than her current
rate of pay and higher than the Award rate of pay for her classification. While the entitlement
to redundancy pay would reduce, Navitas has no plan or intention of making Ms Olifent’s role
of Student and Academic Services Officer redundant. Paid parental leave would be in
accordance with Navitas’ Group policy that offers up to 12 weeks’ paid parental leave in
addition and separate to the Commonwealth provided Parental Leave Pay. Salary packaging
arrangements would continue to be in accordance with Navitas Group policy, and s.324 of the
FW Act.
[16] Ms Olifent is concerned to preserve the terms and conditions provided by the AWA
including the higher salary rates and the rate increases provided under clause 7.4 which are in
accordance with increases to the UniSA Agreement. She is concerned that the anticipated
[2024] FWCFB 165
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merger between UniSA and Adelaide from 1 January 2026 may lead to redundancy and, should
the AWA terminate, this may result in reduced redundancy pay. Navitas does not anticipate the
merger will result in any redundancies.
Consideration
[17] In determining whether subitem 20A(8) of Sch 3 applies, we are required to consider
whether it is likely that at the time the application was made Ms Olifent would be better off
overall if the AWA applied than if the Award applied. Given the salary provided for in the
AWA and the hours Ms Olifent works, we are satisfied that this is the case. Consequently, as
Ms Olifent would be better off under the AWA, subitem (8) does apply.
[18] Once satisfied that subitem (8) applied we are required to consider whether it is
otherwise appropriate to extend the default period of the AWA. In Suncoast Scaffolding the
Full Bench said:3
[16] Under subitem (6)(a) of item 20A, in addition to being satisfied that subitem (7),
(8) or (9) applies, the Commission must also be satisfied that ‘it is otherwise appropriate
in the circumstances’ for the default period to be extended. ‘Appropriate’, on its
ordinary meaning, connotes that it is ‘suitable’ or ‘fitting’ to grant the extension. ‘In
the circumstances’ connotes the relevant matters and conditions accompanying the
particular case. The inclusion of the adverb ‘otherwise’ indicates that
appropriateness must be assessed by reference to circumstances other than those
addressed by subitem (7), (8) or (9), as applicable. A broad evaluative judgment is
required to be made.
[19] The circumstances relevant to the current application include Navitas’ commitment to
pay a salary higher than the salary currently being paid under the AWA. It has also indicated
that the concern Ms Olifent has about redundancy is misplaced as the merger of UniSA, and
the University of Adelaide will have no impact on her employment. We consider these two
issues to be Ms Olifent’s main concerns over the AWA sunsetting. As they are addressed by
Navitas we consider that while Ms Olifent may strictly be worse off under the Award, the over-
award arrangements proposed by Navitas ensure that she will not actually be worse off. In terms
of salary, she will be better off.
[20] The Full Bench in Northern Inland Credit Union Limited4 noted that the statutory
intention behind the SJBP amendments is that transitional instruments approved many years
ago under previous iterations of the legislation sunset and be replaced by modern industrial
instruments made under the FW Act. The Full Bench also observed that this intention is
pertinent to AWAs which are a species of individual employment agreements that are referred
to in the objects of the FW Act as being inconsistent with a fair workplace relations system.
[21] The lack of any significant disadvantage to Ms Olifent in her employment and the
statutory intention of the provisions lead us to conclude that it is not otherwise appropriate in
the circumstances to extend the default period for Ms Olifent’s AWA.
[22] The application is dismissed.
[23] 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 (10)(e) provides
THE FAIR WORKS LUSTRAL AMISSION THE SE
[2024] FWCFB 165
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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 AWA
the default period is extended until 2 April 2024.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR772511
1 [2023] FWCFB 105 at [3] to [18].
2 See also item 26A of Sch 3A and item 30 of Sch 7 of the Transitional Act.
3 Ibid at [16].
4 [2023] FWCFB 120 at [23]-[25].
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb105.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb120.pdf
