1
Fair Work
(Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 20A(4) - Application to extend default period for agreement-based transitional
instruments
Applications by Australian Education Union to extend default period for the
collective agreement based transitional instruments listed in schedule 1.
(AG2023/4842 and ors)
Social and community services industry
DEPUTY PRESIDENT SLEVIN
COMMISSIONER CRAWFORD
COMMISSIONER ALLISON
SYDNEY, 24 APRIL 2024
Introduction
[1] The Australian Education Union (AEU) applies pursuant subitem 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 11 zombie agreements that apply to
disability services workers and educators in regional Victoria (the Agreements).
[2] The Agreements are:
• George Gray Centre Disability Services Victoria (Part 1) Collective Agreement 2008
(AC315057)
• Windarring ATSS Disability Services Victoria (Part 10) Enterprise Agreement 2005
(AG842110)
• Whittlesea District ATSS Disability Services Victoria (Part 1) Collective Agreement
2008 (AC315059)
• Milparinka Inc Disability Services Victoria (Part 1) Enterprise Agreement 2005
(AG843654)
• Mirridong Services Inc Disability Services Victoria (Part 1) Enterprise Agreement 2005
(AG847885)
• Asteria Services Inc Disability Services Victoria (Part 1) Collective Agreement 2008
(AC316003)
• Murray Valley Centre Disability Services Victoria (Part 1) Collective Agreement 2008
(AC318743)
• Distinctive Options Day Services Collective Agreement 2006-2009 (AC310793)
• Noweyung Ltd Disability Services Victoria (Part 1) Collective Agreement 2008
(AC314279)
[2024] FWCFB 233 [Note: A copy of the zombie agreement to which this
decision relates (AC315057, AG842110, AC315059, AG843654,
AG847885, AC316003, AC318743, AC310793, AC314279, AC318158,
AC314629) is available on our website.]
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/agreements/approved/AC315057.pdf
https://www.fwc.gov.au/documents/agreements/approved/AG842110.pdf
https://www.fwc.gov.au/documents/agreements/approved/AC315059.pdf
https://www.fwc.gov.au/documents/agreements/approved/AG853654.pdf
https://www.fwc.gov.au/documents/agreements/approved/AG847885.pdf
https://www.fwc.gov.au/documents/agreements/approved/AC316003.pdf
https://www.fwc.gov.au/documents/agreements/approved/AC318743.pdf
https://www.fwc.gov.au/documents/agreements/approved/AC310793.pdf
https://www.fwc.gov.au/documents/agreements/approved/AC314279.pdf
https://www.fwc.gov.au/documents/agreements/approved/AC318158.pdf
https://www.fwc.gov.au/documents/agreements/approved/AC314629.pdf
[2024] FWCFB 233
2
• Moe Life Skills Community Centre Disability Services Victoria (Part 1) Collective
Agreement 2008 (AC318158)
• McCallum Disability Services Disability Services Victoria (Part 1) Collective
Agreement 2008 (AC314629)
[3] The Agreements were made and approved under the Workplace Relations Act 1996.
They are collective agreement-based transitional instruments for the purpose of Sch 3 of the
Transitional Act.
[4] The Transitional Act was amended by the Fair Work Legislation Amendment (Secure
Jobs, Better Pay) Act 2022 (Cth) (SJBP Act) to provide for the automatic termination of all
remaining transitional instruments. The SJBP Act refers to agreements of this kind 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.1 Pursuant to items 20A(1) and (2) of Schedule 3 to the
Transitional Act, the Agreements would have terminated on 6 December 2023 (the end of the
default period) unless extended by the Commission. The Agreements continued to apply
pursuant to item 20A(11) pending our decision in this matter.
[5] Under subitem 20A(6) of Sch 3, where an application is made for the default period to
be extended, the Commission must grant the application for a period of no more than four years
if either (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. Subitem (7) applies if bargaining
for a replacement agreement is occurring. Subitem (8) relates to individual agreement-based
transitional instruments. Subitem (9) applies if the application relates to a collective agreement-
based transitional agreement and it is likely that as at the time the application is made, the award
covered employees, viewed as a group, would be better off overall if the agreement continued
to apply than if the relevant modern award applied.
[6] Bargaining for replacement agreements is not occurring so subitem (7) does not apply.
The Agreements are collective agreements and subitem (8) does not apply.
[7] The applications to extend the default periods were ostensibly made on the ground that
subitem (9) applies as the employees covered by the Agreements would be better off overall if
the Agreements continued to apply to them than if the relevant modern award applied and that
it is otherwise appropriate to do so. It is put in the alternative that it is reasonable in the
circumstances to extend the default period. In a number of cases the AEU abandoned the first
ground and the ground simply became that it is reasonable in the circumstances to extend the
default period.
[8] The relevant modern award is the Social, Community, Home Care and Disability
Services Industry Award 2020 (SCHADS Award).
[9] Where the Commission is satisfied that the subitem (9) applies it must also consider
whether it is appropriate to extend the default period. In Suncoast Scaffold Pty Ltd the Full
Bench described the ‘appropriateness test’ in this way2:
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
[2024] FWCFB 233
3
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.
[10] In final submissions in a number of matters the AEU abandoned its contention that
subitem (9) applied. Where it did so we cannot extend the default period under subitem 6(a).
The AEU contended instead that the default periods should be extended under subitem 6(b) as
it is reasonable in the circumstances to do so. In Suncoast Scaffold Pty Ltd the Full Bench
described the reasonableness criterion as follows3:
Subitem (6)(b) of item 20A constitutes an independent pathway to the grant of an extension.
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.
[11] The applications seek to extend the default periods for 12 months to 6 December 2024.
The Commission may extend the default periods of the Agreements for no more than four years.
The Applications
[12] The grounds relied upon in each of the applications are identical, albeit there was some
difference in the way the entitlements in the Agreements were described in the applications.
Those difference are noted but they are not material. The common grounds are:
1. The Collective Agreement covers the group of employees of the employer
performing disability support work in day-services, referred to as “instructors”.
2. On 9 November 2023, the Australian Education Union and Health and Community
Services Union filed an application for a supported bargaining authorisation (SBA
Application), in respect of a proposed agreement to cover this employer
(Attachment B).
3. The applicable modern award that covers this group of employees is the Social,
Community, Home Care and Disability Services Industry Award 2020 (SCHADS Award).
4. The AEU believes that award covered employees covered by this Collective Agreement
are better off overall than under the SCHADS award having regard to the following terms
and conditions4:
Collective Agreement SCHADS Award
Annual Leave CL 23 - SIX WEEKS ANNUAL
LEAVE ENTITLEMENT
Cl 6 - Four weeks annual
leave entitlement
Personal Leave Cl 24 – 15 days personal leave
entitlement
Cl 6 – 10 days
personal/carer’s leave
[2024] FWCFB 233
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Non-contact
time
Cl 20.3 – 5 hours weekly non-
contact time
N/A
Study Leave Cl 28 – up to 12 months study leave
recognized as continuous service
N/A
Professional
Development
and Program
Development
Days
Cl 20.5 - entitlement to four
professional development and
program development days each
year
N/A
5. It would be otherwise appropriate in the circumstances to extend the default period, given
the following:
a. If the supported-bargaining authorisation is issued there would likely be multiemployer
bargaining that can impact standards in the disability services industry;
b. There is a prevalence of modern award dependence in the disability services sector, such that
maintaining terms and conditions better than the award will have some bearing on maintaining
better terms and conditions in the sector, and the ability to recruit and maintain a workforce;
c. The workforce in the sector is highly feminised. It is likely that gender-based assumptions in
relation to the nature of the work and skills involved in caring for persons living with disability
has contributed significantly to the undervaluation of work in the sector.
[13] While the Agreements are in similar terms, the workplaces in which they apply are
disparate. The number of employees to whom the agreements apply, the sizes of the workplaces
they apply to, and the manner in which the work performed under the Agreements is organised,
varies. One employer asserts that the Agreement no longer applies to any employees. The
largest employer, Aurora Support Services Inc., has a total of 71 employees covered by the
zombie agreement. The Agreements are all over a decade old and it is apparent that there have
been many changes both in the workplaces at which they apply and in the disability sector more
generally in that time.
[14] Of the 11 applications, 8 are opposed. George Gray Centre Incorporated (George Gray),
Windarring Ltd (Windarring) and Aurora Support Services Inc (Aurora) support the
applications for extensions to the default periods of their agreements.
[15] The grounds of opposition in the other 8 matters are in essence that the Agreements are
old, they apply in organisations with workforces that have a number of industrial instruments
applying, and the respondents believe the employees will be better off under the relevant
modern award. We will deal with the common elements of the applications first and then move
to the circumstances and opposition to each application.
Common Matters
[16] In its applications the AEU seeks the extension of the default periods of 11 zombie
Agreements. The terms of the Agreements are similar. The Commission’s Agreements Team
conducted analyses of each of the Agreements and concluded in each case that, contrary to the
[2024] FWCFB 233
5
view of the AEU, it could not be said that it is likely that as at the time the applications were
made the award covered employees, viewed as a group, would be better off overall if the
agreement continued to apply rather than if the SCHADS Award applied. The analyses were
provided to the parties and they provided responses.
[17] The analysis was that the Agreements cover full-time, part-time and casual employees.
The Agreements cover employees who would otherwise be covered by the SCHADS Award.
The Agreements operate to the exclusion of the Award. On their terms the Agreements leave
employees generally worse off than if they were on the Award.
[18] More specifically, the rates of pay under the Agreements are below the SCHADS Award
and so are taken to be the same as the Award, having regard to Item 13 of Schedule 9 of the
Transitional Act.
[19] Further, the Agreements provide the following entitlements which are less beneficial to
employees when compared to the Award:
• The Agreements provide that part-time employees are engaged to work less than 38
hours per week but are silent on other part-time Award provisions such as having
reasonably predictable hours of work, usual hours of work agreed in writing prior
to commencement, variation of hours by consent, and minimum engagement of 3
hours.
• The Agreements provide a casual loading of 20%, compared to 25% under the
Award and are silent on the 3-hour minimum engagement provided for in the Award.
• There is a varied span of ordinary hours of 7am to 10pm compared to 6am - 8pm in
the Award.
• The Agreements are silent on maximum daily hours. The Award provides a
maximum of 8 hours per day or 10 by agreement.
• They are also silent on all shift definitions and penalties including a shiftworker
definition for the purposes of the NES.
• The Agreements have less beneficial penalties for working ordinary hours on
Saturdays and Sundays providing for ordinary rates with an equivalent of 25% of
the hours worked to be taken as time off in lieu (TOIL). The Award provides a
penalty of 150% for ordinary hours of Saturdays and 200% for ordinary hours on
Sunday. Casual employees are also paid weekend penalties on a cumulative basis.
• They also provide less beneficial penalties for working ordinary hours on Public
Holidays of 200%. The Award provides a penalty of 250% for working ordinary
hours on public holidays. Casual employees are also paid public holiday penalties
on a cumulative basis.
• The Agreements provide TOIL instead of overtime although provide that overtime
payments can be made by agreement at the same rates as TOIL which is 1 hour of
TOIL for each overtime hour worked on weekdays and 1 and half hours of TOIL
for each overtime hour worked on Weekends.
• The Agreements are silent on all TOIL safeguards provided in the Award such as
TOIL must be taken within 6 months or at an agreed time or times or be paid to the
employee at the relevant overtime rates. Further, any accrued but unused TOIL must
be paid to the employee at the relevant overtime rate upon termination or upon
request of the employee.
[2024] FWCFB 233
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• The Agreements provide a travelling allowance but is silent on all other award
allowances.
[20] The Commission’s analysis was based on responses from the employers to the
applications which suggested employees generally work between 8.30am to 5pm, Monday to
Friday. That being the case, full-time and part-time employees would not be better off overall
given all of the less beneficial terms, if required to work overtime, weekends, public holidays
or at times when they would otherwise be considered shiftworkers. With respect to casual
employees, given the lower casual loading, lack of minimum engagement per shift and less
beneficial overtime, weekend and public holiday penalties, casual employees cannot be
considered better off overall. All employees would be worse off should they be entitled to an
Award allowance not otherwise provided for in the Agreements.
[21] The analysis took into account the matters raised by the AEU, the Agreements do
provide more beneficial annual leave provisions of 6 weeks’ annual leave, more beneficial
personal/carer’s leave of 15 days per year of service, provision for non-contact time, study leave
and additional development days. However, the analysis concluded, having regard to the less
beneficial terms outlined above, it is not likely that these benefits, which are in some cases
conditional, would result in employees being considered better off overall when compared to
the Award.
[22] The AEU disagreed with the Commission’s analysis. It submitted that a global
assessment of the Agreements against the Award was not appropriate because subitem 20A(9)
directs the Commission’s attention to the specific group of award covered employees who are
covered by the Agreements. It also submitted that to make the relevant assessment the
Commission needs to know how those particular employees work so as to assess how the
Agreements regulate their particular employment compared to how the Award would regulate
that employment. In 7 cases the AEU contended that there was insufficient material before the
Commission to allow a proper assessment of whether the relevant group was better off overall
under the Agreement. This issue was compounded by the limited scope of the Agreements
which apply to a small number of classifications of employees who are engaged as “instructors”
ostensibly in educational roles running courses or conducting training for people with
disabilities. The AEU pointed out that the SCHADS Award applies to a far greater scope of
work.
[23] The effect of the AEU’s submissions in the 7 matters where the Commission is said to
have insufficient information to make an assessment on the better off overall ground is that we
cannot be satisfied that the subitem (9) applies. The AEU does not press the item (9) ground in
those cases. It follows that in those cases we cannot extend the default period under subitem
20A(6)(a).
[24] The AEU makes an alternative submission, that where we cannot be satisfied that the
requirements of subitem (9) are met we should extend the default period under subitem 6(b)
because it is reasonable in the circumstances to do so. In those matters the AEU relied on the
following circumstances in support of its submission that it is otherwise reasonable in the
circumstances to extend the default periods of the Agreements:
(a) The Respondent and Applicant are both named in one of the first contested
Supported Bargaining authorisation applications (B2023-1235);
(b) Many of the employers named in that supported bargaining authorisation
application had or have Zombie Agreements, which contain beneficial
[2024] FWCFB 233
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entitlements that are not provided for in the SCHADS Award, which the
Applicant seeks to preserve for consideration in any multi-employer
agreement bargaining process that occurs if the supported bargaining
authorisation is granted; and
(c) There is a high prevalence of modern award dependency in the disability
services sector, which has low-rates of pay. Extending the default period of
this Zombie Agreement with beneficial entitlements greater than the modern
award would be reasonable in the circumstances.
[25] These grounds become the sole basis of the applications for those matters where the
AEU submitted there was insufficient material to find that subitem (9) was satisfied. They were
provided as alternative grounds to extend the default periods under subitem 6(b) in those matters
where the ground that the employees would be better off under the Agreements and the
Agreements should be extended under subitem 6(a) was pressed.
[26] The AEU grounds under subitem 6(b) are telling. They identify the purpose of these
applications. The grounds make it clear that the AEU seeks to preserve the more beneficial
terms in the zombie Agreements being the better annual leave, personal leave, study leave and
professional development leave so that they are not disadvantaged in the multi-employer
bargaining that it proposes occur under a supported bargaining authorisation.
[27] We turn to the circumstances at each of the workplaces where the Agreements apply.
We deal first with the applications that are supported by the employers, second with the
applications where approval under subitem 6(a) is pressed and lastly with the applications that
proceed solely on the basis of subitem 6(b).
George Gray Centre Disability Services Victoria (Part 1) Collective Agreement 2008
(AC315057)
[28] George Gray Centre Incorporated (George Gray) is covered by the George Gray Centre
Disability Services Victoria (Part 1) Collective Agreement 2008. It supports the application.
George Gray provides support for persons with disabilities both in a day centre and out in the
community. It provides support to individuals with disabilities and in group programs.
[29] The number of employees covered by the George Gray zombie agreement is 32. Three
are full time, 18 are part time and 11 are casual. The centre operates Monday to Sunday between
8.00 am and 4.00 pm. George Gray has made a commitment to its current staff that should the
Agreement terminate, it will maintain the more beneficial conditions of 6 weeks annual leave
per year and 15 days personal leave.
[30] The AEU contends that the default period should be extended under item 20A(6)(b) to
preserve important terms and conditions while bargaining is occurring. It also points to the fact
that the employees are employed in the disability sector which is characterised by a high level
of award coverage meaning employees are engaged on minimum standards rather than terms
and conditions negotiated in collective agreements.
[31] We are of the view that in the circumstances it is agreeable to reason and sound judgment
to extend the default period for the Agreement. The circumstances that lead to this conclusion
include those relied upon by the AEU. The AEU’s attempts to negotiate a multi-employer
agreement to replace the zombie Agreements in the sector is also a reasonable course of action
[2024] FWCFB 233
8
in circumstances where the employees under the Agreements have been covered by similar
terms and conditions across numerous employers for some time. The circumstances in the case
of this Agreement include that the employer supports the extension.
[32] The employer respondents to these applications all operate in the disability sector. They
are heavily reliant on government funding. Accordingly, they perform an important community
service with finite resources. One of the many challenges they face is to balance the allocation
of funds fairly. In doing so they need to ensure the terms and conditions afforded to employees
are fair while maintaining flexibility to provide important services to the community. We are
of the view that this is best done by engaging with employees and their representatives.
Extending the default period of this Agreement, and others, will allow time for such
engagement.
[33] We will extend the default period for the Agreement to 6 December 2024.
Windarring ATSS Disability Services Victoria (Part 10) Enterprise Agreement 2005
(AG842110)
[34] Windarring Ltd (Windarring) is the employer covered by the Windarring ATSS
Disability Services Victoria (Part 10) Enterprise Agreement 2005. Windarring supports the
application. The Windarring Agreement covers that group of employees of the employer
performing disability support work in day-services, referred to as “instructors” and as program
managers.
[35] Windarring is a registered Disability Service provider, providing disability services to
approximately 230 clients in North Central Victoria. Windarring has 30 employees covered by
the Agreement, 5 of whom are full time, 24 permanent part time and 1 is a casual. It appears
unclear whether 5 of the employees are properly covered for various reasons the AEU raises,
however notwithstanding the issues regarding coverage in respect of these employees, the union
submits that the Commission should have regard to the work performed by the 25 employees
that are evidently covered. The centre’s hours of operations vary, depending on which part of
the business the employee works. Generally, the operating hours are from 9 am – 3 pm or 5pm.
In some parts of the business, services are available to be delivered 24 hours per day, every day
of the year.
[36] Windarring submits there are a number of benefits to the SCHADS Award which have
not been recognised in the application made by the AEU. Windarring has expressed an intention
to allow the following benefits in the Agreement to continue if the Agreement terminates:
• Personal leave provided for at clause 24 – 15 days of annual personal leave
entitlement.
• Study leave provided for at clause 28 – up to 12 months study leave recognised as
continuous service.
• Professional Development Day provided for at clause 20.5 - entitlement to three
professional development days each yest
[37] Windarring also submits they would not be agreeable to extending the 6 week annual
leave allowance provided for at clause 23 and non-contact time provided for at clause 20.4, as
under current NDIS funding arrangements this would be financially unsustainable.
[2024] FWCFB 233
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[38] The AEU submits that subitem (9) applies as the Commission can be satisfied that the
covered employees when viewed as a group are likely to be better off overall under the zombie
Agreement compared to the SCHADS award and that it is also appropriate in the circumstances
to extend the default period for a period of 12 months. In the alternative the AEU submits for
the reasons already set out that it is reasonable in the circumstances to extend the default period
under subitem 6(b).
[39] We are not satisfied that subitem (9) applies. There is too much uncertainty associated
about the identity of the group of employees covered by the Agreement. It is also unclear as to
what part of Windarring’s business the employees covered by the Agreement work. This makes
it difficult to assess how the Agreement would apply. Consequently, we cannot extend the
default period under subitem 6(a).
[40] We do find that it is reasonable in all of the circumstances to extend the default period.
Our reasons are the same as for the George Gray Agreement.
[41] We will extend the default period for the Agreement under subitem 6(b) until 6
December 2024.
Whittlesea District ATSS Disability Services Victoria (Part 1) Collective Agreement 2008
(AC315059)
[42] Aurora Support Services Inc (Aurora) is the employer covered by the Whittlesea District
ATSS Disability Services Victoria (Part 1) Collective Agreement 2008. Aurora supports the
application. Aurora provides group-based support for adults with disability and is a not-for-
profit organisation.
[43] The number of employees covered by the Agreement is 71. Aurora has 72 employees.
Its finance officer is covered by another modern award. The centre operates Monday to Friday
between 9.00 am and 3.00 pm. The Centre also operates programs which run on evenings and
weekends as well as camps that will span a number of days, however staff work these days on
an opt in basis in addition to their regular hours. The majority of employees covered by the
zombie Agreement are Support Workers (referred to in the agreement as ‘instructors’) who
provide direct care to the participants and other staff include managers, directors and
administrative staff. There are 27 full time, 23 part time and 21 casual employees.
[44] Aurora also submitted that without an extension of the Agreement, it may be required
to transition to the SCHADS Award, and then potentially need to transition again to another
agreement, should the application for supported bargaining be accepted and result in a new
multi-employer agreement. This would require an administrative burden for the organisation,
as well as being disruptive and confusing for staff.
[45] Aurora has made the decision to allocate 7 days of ‘ex gratia’ leave to all permanent
employees from 7 December 2023 to 5 December 2024 should the Agreement terminate and
the organisation transition to the SCHADS Award. The ‘ex gratia’ leave period would coincide
with a service closure for these dates, which when coupled with the Public Holidays at this time
of year would have given all permanent employees a 2-week paid holiday break in addition to
the annual leave entitlements provided in the SCHADS Award. It is Aurora’s intention to
continue to allocate these ‘ex gratia’ days annually, provided that the organisation can sustain
this financially.
[2024] FWCFB 233
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[46] The AEU maintains that when looking at the context of the entire group of employees
covered by the Whittlesea agreement the Commission can be satisfied that the covered
employees are likely to be better off overall compared to the SCHADS Award such that item
20A(9) applies and that it would be appropriate in the circumstances to extend the default period
of the Zombie Agreement for 12 months. Again, we disagree. There is insufficient certainty
about the coverage of the Agreement to determine with certainty the relevant group for the
better off overall assessment. Consequently, we cannot be satisfied that it is likely that as at the
time the application is made the award covered employees, viewed as a group, would be better
off overall if the agreement continued to apply than if the relevant modern award applied.
[47] For the reasons above concerning the George Gray Agreement we are of the view that
it is reasonable in all of the circumstances to extend the default period for the Aurora
Agreement.
[48] We will extend the default period for the Agreement under subitem 6(b) until 6
December 2024.
Milparinka Inc Disability Services Victoria (Part 1) Enterprise Agreement 2005 (AG843654)
[49] Milparinka Support Services Inc (Milparinka) is the employer covered by the
Milparinka Inc Disability Services Victoria (Part 1) Enterprise Agreement 2005. It opposes the
application. Milparinka provides a range of support services to people with intellectual
disabilities. These services include direct support (in group based and individual settings),
support coordination, housing support and plan management. It has 64 employees covered by
the Agreement – 24 full time, 11 part time and 29 casual. The employees covered by the zombie
agreement work across all areas including organisational administration.
[50] Milparinka pays all employees’ wages in accordance with the classification levels
contained in the SCHADS Award. Most permanent employees work between the span of hours
8:30 a.m. to 4:30 p.m. Monday to Friday. Casuals work when work is available. The vast
majority of casual work occurs between the hours of 8:30 a.m. and 8:00 p.m. Monday to
Saturday, with some employees working on Sundays and Public holidays.
[51] Milparinka contends that the only benefits in the zombie Agreement that are more
beneficial than the Award are 6 weeks annual leave and 15 days personal leave. Milparinka has
implemented various improvements to employee terms and conditions to ensure compliance
with the National Employment Standards (NES) and SCHADS Award. Milparinka applies the
following benefits from the Award and NES to all staff:
• All staff transitioned across to the SCHADS pay tables which are more beneficial
than the pay tables in the Agreement.
• SCHADS has a minimum engagement shift of 2 hours duration, the Agreement had
no minimum shift length.
• Pay rates are 250% for work on public holidays as opposed to 200% in the
Agreement.
• Pay rates are 200% for work on Sunday as opposed to 150% in the Agreement.
• Broken Shift Allowances which are not provided for in the Agreement.
• Any ordinary hours worked on a Saturday are paid at 150% and Sunday are paid at
200% as opposed to 125% in the Agreement.
[2024] FWCFB 233
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• If an employee works a shift of more than 10 ordinary hours, overtime applies after
10 hours. There is no such provision in the Agreement.
[52] Milparinka has agreed in writing with all 35 permanent employees that it will continue
to provide 6 weeks annual leave and 15 days personal leave accruals in perpetuity as over
Award entitlements.
[53] The AEU submits that without further information about the specific work the 64
employees that Milparinka considers to be covered by the Zombie Agreement perform, the Full
Bench cannot make a proper consideration of whether sub-item (9) applies for consideration
under item 20A(6)(a). This is because, it is unclear what portion of the ‘award covered
employees’ perform work covered by the Agreement. Further, or alternatively, the AEU
submits we are not in a position to determine whether the major and substantial proportion of
the duties performed are those of an “instructor” or those of an employee performing attendant
carer duties. There is some uncertainty about the relevant group of employees covered by the
Agreement. Although that uncertainty is not as great as other applications being considered
here. It appears that the relevant group of employees, so far as it can be ascertained by the
material provided, would be better off on the SCHADS Award. This is due to the number of
casuals engaged who would be entitled to the higher loading and not be entitled to the more
generous leave provisions. In either scenario we are not satisfied that the employees covered
by the Agreement would be better off overall if the Agreement continued to apply to them than
if the relevant modern award applied. We are not satisfied that sub-item (9) applies.
Consequently, we cannot extend the default period under subitem 6(a).
[54] We are satisfied for the reasons already referred to in relation to the three Agreements
dealt with above that it is reasonable in all of the circumstances to extend the default period of
the Agreement.
[55] We will extend the default period for the Agreement under subitem 6(b) until 6
December 2024.
[2024] FWCFB 233
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Mirridong Services Inc Disability Services Victoria (Part 1) Enterprise Agreement 2005
(AG847885)
[56] Mirridong Services Inc (Mirridong) is the employer covered by the Mirridong Services
Inc Disability Services Victoria (Part 1) Enterprise Agreement 2005. It opposes the application.
It describes the zombie Agreement as a historical document which has had no practical
application since 2012, which is to say Mirridong had not applied the Agreement since 2012,
when it commenced applying the SCHADS Award.
[57] Two permanent employees are still afforded 6 weeks annual leave and 15 days personal
leave on the basis that those 2 employees were employed prior to 2012. The Agreement
conditions have not been applied to employees engaged since 2012.
[58] The AEU submits that there is insufficient information before us to determine the group
of employees the performing work under the Agreement and the hours of work in day-services
at Mirridong. Accordingly, there is insufficient information for us to consider sub-item 9(b) that
award-covered employees, when viewed as a group would be better-off-overall if the zombie
Agreement applied compared to the modern award. The AEU submits that on that basis it
cannot properly maintain the application pursuant to s.20A(6)(a) of Schedule 3 of the
Transitional Act. We agree with the submissions and find that we cannot be satisfied that
subitem (9) is satisfied and so cannot extend the default period for the Agreement under subitem
6(a).
[59] The circumstances in which and reason Mirridong ceased to apply the Agreement are
unclear. There does not appear to have been a transfer of business that led to no employees
transferring which is the most likely way in which the Agreement would no longer apply. The
uncertainty about this issue combined with the reasons already set out in relation to the other
Agreements that are dealt with in this decision lead us to be satisfied that it is reasonable in the
circumstances to extend the default prior for this Agreement.
[60] We will extend the default period for the Agreement under subitem 6(b) until 6
December 2024.
Asteria Services Inc Disability Services Victoria (Part 1) Collective Agreement 2008
(AC316003)
[61] Asteria Services Inc (Asteria) is the employer covered by the Asteria Services Inc
Disability Services Victoria (Part 1) Collective Agreement 2008. Asteria is a not for profit
disability support organisation providing support to people with disability under the NDIS.
Asteria also provides out of home care services and is a provider of community social housing.
[62] Asteria opposes the application. It describes the zombie Agreement as a historical
document which has had no practical application since 2016, which is to say Asteria had not
applied the Agreement since 2016 which was a period of major restructure. It commenced
applying the SCHADS Award in 2016. Since 2016, Asteria submits that the vast majority of its
disability services is in the community and not in ‘day programs’ by instructors, the group of
employees which the Agreement is expressed to cover.
[63] Asteria says there are no employees covered by the Agreement. If the Agreement were
to apply to its employees Asteria raises a number of terms and conditions which it says are less
[2024] FWCFB 233
13
beneficial than the SCHADS Award. Asteria submits that the Commission cannot be satisfied
that section 20A(7), (8) or (9) of the Transitional Act applies and that given the Agreement does
not cover anyone employed by Asteria the Commission should not otherwise be satisfied that
it would be reasonable in the circumstances to extend the Agreement by a further 12 months,
as sought by the AEU.
[64] The AEU contends that coverage is not a matter that is determined based on an
employer’s operational changes but a question of fact regarding the nature of work being
performed by employees. Since there are still some employees who perform work of an
‘instructor’, including to deliver group supports, the union submits these employees continue
to be covered by the Agreement.
[65] The AEU acknowledges that there is insufficient information before us to determine the
group of employees performing work under the Agreement and what percentage of employees
work casual, part time or full time. However, when looking at the context of the entire group of
employees covered, the AEU submits that the Commission can be satisfied that the covered
employees are likely to be better off overall under the Agreement compared to the SCHADS
Award such that item 20A(9) applies and that it would be appropriate in the circumstances to
extend the default period of the Agreement for 12 months. We disagree. We are of the view that
there is insufficient information before us to be satisfied that subitem (9) is satisfied and so
cannot extend the default period for the Agreement under subitem 6(a).
[66] For the same reasons set out above in relation to the Mirridong Agreement, we are
satisfied that it is reasonable to extend the default period for this Agreement.
[67] We will extend the default period for the Agreement under subitem 6(b) until 6
December 2024.
Murray Valley Centre Disability Services Victoria (Part 1) Collective Agreement 2008
(AC318743)
[68] Community Accessibility Incorporated (CA) is the employer covered by the Murray
Valley Centre Disability Services Victoria (Part 1) Collective Agreement 2008. CA acquired
the business from Murray Valley Centre Incorporated on 1 April 2023. The Agreement was a
transferable instrument and there were employees who transferred with the business. There are
15 employees who are covered by the Agreement, 11 are full-time employees and 4 are casual
employees. The rest of CA’s employees are covered by the SCHADS Award. CA describes the
Agreement as a legacy instrument. CA does not support the AEU application.
[69] CA is a not for profit organisation providing community activities, home support and
transport assistance to disabled and older clients. The work performed by the employees
covered by the Agreement is to provide supported employment and centre-based community
activities for individuals and groups. The centre has operated at a loss for over 10 years.
Employees covered by the Agreement work 7.6 hours per day on Monday to Friday generally
between 9.00 am and 5.00 pm.
[70] CA contends that the employees would be better off overall on the SCHADS Award
because it offers conditions such as casual conversion, consultation on rosters, shiftwork
penalties, minimum shift lengths, broken shifts protections, obligations for pay if a client
[2024] FWCFB 233
14
cancels, cashing in of annual leave, benefits for part time employees, a 25% casual loading, and
a more beneficial scope of hours clause.
[71] The AEU presses its contention that subitem (9) applies as the employees taken as a
group would be better off if the Agreement continued to apply. It submits that while there are
4 casual employees, the majority are full time, and they benefit from the 6 weeks annual leave
and 15 days personal leave. The benefits in the Award in relation to shiftwork, overtime and
protections for part-time employees in the SCHADS Award do not apply to the majority of
CA’s employees given the hours they work.
[72] We are satisfied in this case that subitem (9) applies. We are also satisfied that it is
appropriate in the circumstances to extend the default period for the Agreement. It is appropriate
to do so because the employees should have certainty about their conditions of employment, in
particular their leave entitlements, while the AEU attempts to negotiate an instrument to replace
the Agreement.
[73] We will extend the default period for the Agreement under subitem 6(a) until 6
December 2024.
Distinctive Options Day Services Collective Agreement 2006-2009 (AC310793) and
Noweyung Ltd Disability Services Victoria (Part 1) Collective Agreement 2008 (AC314279)
[74] Distinctive Options (DO) is the employer covered by the Distinctive Options Day
Services Collective Agreement 2006-2009 and the Noweyung Ltd Disability Services Victoria
(Part 1) Collective Agreement 2008. DO has recently acquired the business of Noweyung Ltd.
DO informed us that 70 employees from Noweyung transferred with the business making the
Noweyung Agreement a transferrable instrument, with the consequence that the Agreement
continues to apply to the employment of the transferring employees. DO does not support the
applications to extend the default periods for the agreements.
[75] Noweyung Ltd also responded to a request from the Commission for information about
its employees but failed to provide any information save for an assertion that Noweyung Ltd
staff transferred to the SCHADS Award a number of years ago. Noweyung Ltd contends it no
longer has employees covered by the Agreement. Noweyung Ltd also does not support the
applications to extend the default periods for the agreements.
[76] DO provides a wide range of disability support services and employment options to
people with a disability and its employees are engaged in service coordination, financial plan
management, NDIS support intake, rostering, general administration, other corporate service
functions and cleaning. There are 47 employees who are covered by the DO Agreement,
equivalent to 25% of its total 186 employees, and 44 are full time/part time and 3 are casual
employees. We were told that 70 employees have transferred from Noweyung. It is not clear
how many of those continue to be covered by the Noweyung Agreement.
[77] DO estimates that 25% of its employees work in only group-based day service roles
while the majority perform other work and submits that the SCHADS Award has applied to
100% of its employees, excluding management.
[78] DO contends that the employees would be better off overall on the SCHADS Award
because it offers conditions such as on call allowances, broken shift allowances, provisions
[2024] FWCFB 233
15
relating to client cancellations, shift allowances and penalty rates and rostered days off. DO
contends it maintains over Award entitlements for all employees through ‘grandfathering’
conditions for existing employees.
[79] The AEU submissions went to both applications. The AEU submits that there is
insufficient information before us to determine the hours of operation and hours of work of
employees covered by the two agreements for any proper consideration of sub-item (9) as
required by item 20A(6)(a) of Schedule 3 of the Transitional Act. Further, in the absence of
clear information about the group of employees employed at either or both DO and Noweyung,
the extent to which the transfer of employment and merger has been completed and the hours
of work and operations of both DO and Noweyung, there is insufficient information for us to
be satisfied that award-covered employees, when viewed as a group would be better off overall
if the zombie agreements applied compared to the modern award. The AEU concludes that on
that basis it cannot properly maintain the application pursuant to s.20A(6)(a) of Schedule 3 of
the Transitional Act.
[80] We agree with the AEU submissions and find that we cannot be satisfied that subitem
(9) is satisfied and so cannot extend the default period for the two Agreements under subitem
6(a).
[81] The uncertainty about the extent of the coverage of the two Agreements and their
application is a matter that supports the extension of the Agreements. The proposed bargaining
is one way by which the uncertainty can be resolved. The factors relevant to the other
applications already mentioned also apply to these two Agreements. We are satisfied that it is
reasonable in the circumstances to extend the default periods for the Agreements.
[82] We will extend the default period for the two Agreements under subitem 6(b) until 6
December 2024.
Moe Life Skills Community Centre Disability Services Victoria (Part 1) Collective Agreement
2008 (AC318158)
[83] Life Skills Victoria Inc (LSV) informed the Commission it was not aware of the Moe
Life Skills Community Centre Disability Services Victoria (Part 1) Collective Agreement 2008.
LSV opposes the application. LSV is a registered National Disability Insurance Scheme (NDIS)
participant and a provider of high-quality education, training, disability, and community
services to enable people with disability to maximise independent lifestyles and full inclusion
in the mainstream community. The service is run as a day service provider – staff work agreed
hours on a term by term timetable, rostered between 8:30am – 5pm. There are 26 students
attending Life Skills’ day service and it has 11 employees. It appears at least three employees
are covered by the Agreement. Two of these employees are part time while the other employee
is full time.
[84] LSV also lodged a separate application on 25 October 2023 to terminate the Moe Life
Skills Community Centre HSU Disability Services Union Collective Agreement 2006-2009. At
the time of applying to terminate this Agreement Life Skills stated it was not aware of the 2008
Agreement and sought to terminate both Agreements. The Applications did not proceed as item
20A of schedule 3 took effect to terminate the Agreements from 6 December 2023 or such later
time that the Commission determined.
[2024] FWCFB 233
16
[85] LSV contends it does not believe that employees would be better off covered by the
Agreement given that the three employees covered have retained all additional leave provisions.
[86] Presently, there is information before the Commission about three employees covered
by the Agreement but not the other eight employees. The AEU submits that without further
information about the nature of the work and employment arrangements for all 11 employees,
we cannot make a proper consideration of whether these employees are ‘award covered
employees’ to make an assessment of the factors prescribed in sub-item 9. While it may be
assumed that all employees are covered by the Agreement, if any are performing other duties
that may be covered by a different instrument, there may be an issue about coverage. We agree
with the AEU submission and find that we cannot be satisfied that subitem (9) is satisfied and
so cannot extend the default period for the Agreement under subitem 6(a).
[87] LSVs’ response to the application gives rise to uncertainty in the coverage of the
Agreement to employees. This combined with the factors already referred to in this decision
going to reasonableness lead us to be satisfied that it is reasonable in the circumstances to extend
the default period for the Agreement.
[88] We will extend the default period for the Agreement under subitem 6(b) until 6
December 2024.
McCallum Disability Services Disability Services Victoria (Part 1) Collective Agreement
2008 (AC314629)
[89] McCallum Disability Services (MDS) is the employer covered by the McCallum
Disability Services Disability Services Victoria (Part 1) Collective Agreement 2008. McCallum
operates a business with a total of 555 employees. Only 41 of those employees work in the
Community Connections area of the business and are employed pursuant to the AEU
Agreement which is subject of this Application.
[90] MDS provides a number of services. It provides supported employment work
opportunities for people with disabilities. It has 256 employees in this part of the business.
These employees are employed pursuant to the Supported Employment Services Award 2020.
There are 53 employees whose work is providing support to individuals in homes and they are
employed pursuant to the SCHADS Award. MDS has 160 employees who work in residential
accommodation support worker and team leader roles providing residential support and
independent living services on a 24/7 roster and in related administration roles who are
employed pursuant to two zombie agreements which are the subject of other applications to
extend their default periods by the Health Services Union. MDS has 45 employees in other
administration and management roles not covered by any Agreement.
[91] Of the 41 employees covered by the AEU Agreement, two are full time employees, 26
part time employees and 13 are casual employees. These employees work the following hours;
8.45am – 3.30pm Monday, Tuesday, Wednesday and Friday and 8.45am – 4.15pm on
Thursdays. No work is performed on weekends or public holidays and overtime is rare.
[92] MDS provided a detailed analysis of the remuneration payable under the Agreement
compared to the Award based on the hours worked and submitted that all employees would be
financially worse off if the Agreements continue. In particular, MDS pointed to the casual
employees who, due to the 20% loading under the Agreement, rather than 25% under the
[2024] FWCFB 233
17
Award, would be clearly better off if the Award applied - 13 of the 41 employees are casual
employees. MDS’s figures suggest that permanent employees will lose $28.00 per week and
casuals $50 per week if the Agreement continues to operate. The $28.00 a week for permanent
employees arises because if the SCHADS Award applies then the first aid allowance of $3.38
per shift will apply.
[93] The question of whether it is likely that, as at the time the application was made, the
award covered employees, viewed as a group, would be better off overall if the Agreement
continued to apply than if the relevant modern award applied is finely balanced. Casual
employees are not better off under the Agreement. Permanent employees, due to the more
generous leave provisions, are better off under the Agreement. We find that taking the
employees as a group subitem (9) is satisfied as on the ratio of permanent to casual staff more
employees benefit from remaining on the Agreement. Consequently, we are satisfied that the
award covered employees, viewed as a group, would be better off overall if the Agreement
continued to apply than if the SCHADS Award applied.
[94] We are also of the view that it is otherwise appropriate to extend the default period. The
circumstances accompanying this case include the attempts by the AEU to bring some
uniformity to the sector in which the Agreement operates through its supported bargaining
authorisation application and the desirability for certainty in the terms and conditions applying
to MDS employees while those attempts are made. MDS submit that an extension of the
Agreement will disrupt the steps it has taken to transfer employees to the SCHADS Award. Its
preference is to make the coverage of industrial instruments across all of its operations as
uniform as possible. We do not believe the administrative inconvenience associated with having
to continue to afford the terms and conditions in the Agreement for a limited period outweighs
other considerations, including the appropriateness of allowing the AEU to continue to attempt
to negotiate a replacement agreement, whether that is through supported bargaining for a multi-
employer agreement or otherwise.
[95] We will extend the default period for the Agreement under subitem 6(a) until 6
December 2024.
Conclusion
[96] For the foregoing reasons we have decided to extend the default period for each of the
following agreements:
• George Gray Centre Disability Services Victoria (Part 1) Collective Agreement 2008
(AC315057)
• Windarring ATSS Disability Services Victoria (Part 10) Enterprise Agreement 2005
(AG842110)
• Whittlesea District ATSS Disability Services Victoria (Part 1) Collective Agreement
2008 (AC315059)
• Milparinka Inc Disability Services Victoria (Part 1) Enterprise Agreement 2005
(AG843654)
• Mirridong Services Inc Disability Services Victoria (Part 1) Enterprise Agreement 2005
(AG847885)
• Asteria Services Inc Disability Services Victoria (Part 1) Collective Agreement 2008
(AC316003)
[2024] FWCFB 233
18
• Murray Valley Centre Disability Services Victoria (Part 1) Collective Agreement 2008
(AC318743)
• Distinctive Options Day Services Collective Agreement 2006-2009 (AC310793)
• Noweyung Ltd Disability Services Victoria (Part 1) Collective Agreement 2008
(AC314279)
• Moe Life Skills Community Centre Disability Services Victoria (Part 1) Collective
Agreement 2008 (AC318158)
• McCallum Disability Services Disability Services Victoria (Part 1) Collective
Agreement 2008 (AC314629)
[97] We have decided to extend the default periods to 6 December 2024. We consider this
long enough to deal with the matters raised in this decision. We expect that during that time the
AEU will work cooperatively with the employers to address the issues raised in the applications.
We also expect that the employers will take a cooperative approach in addressing the concerns
raised by the union.
[98] The Agreements are published, in accordance with subitem 20A(10A)(c), on the Fair
Work Commission’s website and can be accessed through the hyperlinks in Schedule 1 to this
decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR774228
KOMMISSION THE SEAL OF
[2024] FWCFB 233
19
Schedule 1
Matter
number
Enterprise Agreement Name Publication ID
AG2023/4842 George Gray Centre Disability Services Victoria
(Part 1) Collective Agreement 2008
AC315057
AG2023/4856 Windarring ATSS Disability Services Victoria (Part
10) Enterprise Agreement 2005
AG842110
AG2023/4828 Whittlesea District ATSS Disability Services Victoria
(Part 1) Collective Agreement 2008
AC315059
AG2023/4847 Milparinka Inc Disability Services Victoria (Part 1)
Enterprise Agreement 2005
AG843654
AG2023/4848 Mirridong Services Inc Disability Services Victoria (Part
1) Enterprise Agreement 2005
AG847885
AG2023/4820 Asteria Services Inc Disability Services Victoria (Part 1)
Collective Agreement 2008
AC316003
AG2023/4849 Murray Valley Centre Disability Services Victoria (Part
1) Collective Agreement 2008
AC318743
AG2023/4836 Distinctive Options Day Services Collective Agreement
2006-2009
AC310793
AG2023/4854 Noweyung Ltd Disability Services Victoria (Part 1)
Collective Agreement 2008
AC314279
AG2023/4844 Moe Life Skills Community Centre Disability Services
Victoria (Part 1) Collective Agreement 200
AC318158
AG2023/4846 McCallum Disability Services Disability Services
Victoria (Part 1) Collective Agreement 2008
AC314629
1 [2023] FWCFB 105.
2 Id at [16].
3 Id at [17].
4 The clause numbers differed in the zombie agreements and the entitlement to professional development leave
and program development days differed. One of the Agreements also has an additional week of annual leave
referred to as supplementary annual leave.
https://casehq.fwc.gov.au/FWCPROD/PublicationLoad.action?key=315057&XSRF-TOKEN=306411ba-c2cc-4369-8ab8-5a5122163e8a
https://casehq.fwc.gov.au/FWCPROD/PublicationLoad.action?key=842110&XSRF-TOKEN=306411ba-c2cc-4369-8ab8-5a5122163e8a
https://casehq.fwc.gov.au/FWCPROD/PublicationLoad.action?key=315059&XSRF-TOKEN=306411ba-c2cc-4369-8ab8-5a5122163e8a
https://casehq.fwc.gov.au/FWCPROD/PublicationLoad.action?key=843654&XSRF-TOKEN=306411ba-c2cc-4369-8ab8-5a5122163e8a
https://casehq.fwc.gov.au/FWCPROD/PublicationLoad.action?key=847885&XSRF-TOKEN=306411ba-c2cc-4369-8ab8-5a5122163e8a
https://casehq.fwc.gov.au/FWCPROD/PublicationLoad.action?key=316003&XSRF-TOKEN=306411ba-c2cc-4369-8ab8-5a5122163e8a
https://casehq.fwc.gov.au/FWCPROD/PublicationLoad.action?key=318743&XSRF-TOKEN=306411ba-c2cc-4369-8ab8-5a5122163e8a
https://casehq.fwc.gov.au/FWCPROD/PublicationLoad.action?key=310793&XSRF-TOKEN=306411ba-c2cc-4369-8ab8-5a5122163e8a
https://casehq.fwc.gov.au/FWCPROD/PublicationLoad.action?key=314279&XSRF-TOKEN=306411ba-c2cc-4369-8ab8-5a5122163e8a
https://casehq.fwc.gov.au/FWCPROD/PublicationLoad.action?key=318158&XSRF-TOKEN=306411ba-c2cc-4369-8ab8-5a5122163e8a
https://casehq.fwc.gov.au/FWCPROD/PublicationLoad.action?key=314629&XSRF-TOKEN=306411ba-c2cc-4369-8ab8-5a5122163e8a
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb105.pdf
