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
Royal Rehab (formerly known as Royal Rehabilitation Centre Sydney)
(AG2023/4638)
St Vincent’s Hospital Sydney Limited
(AG2023/4691)
NAMED NSW (NON- DECLARED) AFFILIATED HEALTH
ORGANISATIONS' MEDICAL OFFICER AGREEMENT
NSW (NON-DECLARED) AFFILIATED HEALTH ORGANISATIONS'
HEALTH EMPLOYEES AGREEMENT
THE NAMED NSW (NON-DECLARED) AFFILIATED HEALTH
ORGANISATIONS' PROFESSIONAL AND ASSOCIATED STAFF
AGREEMENT
NSW (NON-DECLARED) AFFILIATED HEALTH ORGANISATIONS'
STAFF SPECIALIST AGREEMENT 2009
Health and welfare services
DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT SLEVIN
DEPUTY PRESIDENT GRAYSON
SYDNEY, 9 APRIL 2024
Application to extend the default period for the Named NSW (Non- Declared) Affiliated
Health Organisations' Medical Officer Agreement, the NSW (Non-Declared) Affiliated Health
Organisations' Health Employees Agreement, the Named NSW (Non-Declared) Affiliated
Health Organisations' Professional And Associated Staff Agreement and the NSW (Non-
Declared) Affiliated Health Organisations' Staff Specialist Agreement 2009
Health and welfare services
[1] Pursuant to subitem 30(4) of Sch 7 to the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009 (Cth) (the Transitional Act), Royal Rehab (formerly
known as Royal Rehabilitation Centre Sydney) has applied to extend the default periods for
[2024] FWCFB 203 Note: A copy of the zombie agreement to which this
decision relates (AE874493 AE874495 AE874496 AE880577) is available
on our website.]
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/agreements/approved/AE874493.pdf
https://www.fwc.gov.au/documents/agreements/approved/AE874495.pdf
https://www.fwc.gov.au/documents/agreements/approved/AE874496.pdf
https://www.fwc.gov.au/documents/agreements/approved/AE880577.pdf
[2024] FWCFB 203
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the Named NSW (Non- Declared) Affiliated Health Organisations' Medical Officer Agreement
(AE874493), the NSW (Non-Declared) Affiliated Health Organisations' Health Employees
Agreement (AE874495), the Named NSW (Non-Declared) Affiliated Health Organisations'
Professional And Associated Staff Agreement (AE874496) and the NSW (Non-Declared)
Affiliated Health Organisations' Staff Specialist Agreement 2009 (AE880577) to 6 December
2024 (collectively, the Agreements). St Vincent’s Hospital Sydney Limited has applied to
extend only the Named NSW (Non- Declared) Affiliated Health Organisations' Medical Officer
Agreement to 30 June 2024. We consider both applications in this decision.
[2] The applications are made in accordance with subitem 30(6)(a) on the ground that the
bargaining is occurring for proposed enterprise agreements that will cover the same, or
substantially the same, group of employees as are covered by the Agreements and that it is
appropriate to do so. The applications were made after the notification time for the proposed
enterprise agreements.
[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 made.
[4] We are satisfied on the material provided that the requirements in subitem (6)(a) are met
and that it is appropriate to extend the default periods.
[5] As the Full Bench observed in Suncoast Scaffolding Pty Ltd2 the Commission has a
discretion as to the length of the extension, subject to the limitation that the extension cannot
be more than four years. The nature of the discretion is such that we are not bound to grant the
period of extension sought in the application.3
[6] In ISS Health Services Pty Ltd the Full Bench ordered an extension of 12 months in
circumstances where bargaining for a replacement agreement was occurring. The Full Bench
considered this sufficient time for a replacement agreement to be finalised in circumstances
where there was some complexity in the bargaining including that the existing agreement
covered a number of different sites, a diverse range of classifications and pay rates were linked
to a South Australian public sector industrial instrument, and that a previous attempt at
bargaining lasted for an extended period and did not succeed.
[7] The Applicants in these matters are both affiliated health organisations pursuant to
Schedule 3 of the Health Services Act 1997 (NSW) in relation to the public health services that
they provide. Although they are both national system employers, they are required by a
determination made by the NSW Minister for Health under s. 127(4) of the Health Services Act
1997 (NSW) to provide the same pay and conditions as members of the NSW Health Service
to the extent permitted by law.
[8] The effect of the Fair Work Act 2009 (FW Act) and the Determination is that the
Applicants:
(a) have obligations under the FW Act to comply with the Agreement and the National
Employment Standards; and
(b) have a separate obligation to ‘match’ the NSW Health State Awards-based
remuneration, benefits and conditions for employees.
[2024] FWCFB 203
3
[9] The Applicants state that the terms of the Agreements were drafted to align with the
respective terms and conditions of the relevant State Award that would apply to employees
undertaking the same work for NSW Health, save for additional written undertakings provided
by the employers to the Fair Work Commission. The Applicants submit that the negotiation of
replacement agreements will therefore be very complex.
[10] The Applicants submit that there would be a detrimental impact on operations if the
default periods of the Agreements are not extended as employees covered by the Agreements
will transition either to the Health Professionals and Support Services Award 2020 and Medical
Practitioners Award 2020, which are the applicable Modern Awards. The terms and conditions
in the Modern Awards do not align directly with the State awards, which would create
confusion, uncertainty and potential conflicts between the Applicants’ obligations under the
Determination and FW Act.
[11] The Applicants also submit that the employees covered by the Agreements are paid rates
of pay that align with an applicable State award, industrial instrument or determination of the
Secretary. These rates are above the minimum rates of pay in the relevant Modern Awards.
Therefore, the employees will not be subjected to a financial detriment, or be worse off, by
those arrangements continuing while replacement agreements are negotiated.
[12] Bargaining for an agreement to replace the Named NSW (Non- Declared) Affiliated
Health Organisations' Medical Officer Agreement commenced in May 2023. We note that St
Vincent’s Hospital Sydney Limited is seeking an extension of the default period for that
agreement until 30 June 2024 whereas Royal Rehab is seeking an extension until 6 December
2024. Bargaining for replacement agreements in respect of the other three Agreements
commenced in November 2023. Royal Rehab is the only employer who these three Agreements
continue to apply to and seeks and seeks an extension of the default periods for those
agreements until 6 December 2024.
[13] We accept the Applicants’ submissions that there is significant complexity in
negotiating replacement agreements and that the employees covered by the Agreements will
not be disadvantaged by extending the default periods. For this reason we are prepared to extend
the default periods of all four Agreements to 6 December 2024 as sought by Royal Rehab.
[14] Pursuant to item 30(6) of Sch 7 to the Transitional Act, we order that the default period
for the Agreements is extended until 6 December 2024.
[2024] FWCFB 203
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[15] The Agreements are published, in accordance with subitem 30(9A), on the Fair Work
Commission’s website.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
AE874493 AE874495 AE874496 AE880577 PR773318
1 [2023] FWCFB 122.
2 [2023] FWCFB 105 at [18].
3 See Suncaost Scaffolding Pty Ltd [2023] FWCFB 105 at [18] and Applications by APESMA [2023] FWCFB 137 at [31].
OF THE FAIR WORK L MISSION THE SEA
https://www.fwc.gov.au/documents/agreements/approved/AE874493.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/2023fwcfb105.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb137.pdf
