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 Health Services Union
(AG2023/4545 and ors)
Health and welfare services industry
DEPUTY PRESIDENT SLEVIN
COMMISIONER CRAWFORD
COMMISSIONER TRAN
SYDNEY, 29 APRIL 2024
Introduction
[1] The Health Services Union (HSU) applies pursuant to 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 a number of Agreements that apply to
disability services workers and educators in regional Victoria (the Agreements).
[2] The Agreements are:
• Biala Peninsula Inc - Health Services Union of Australia - Disability Services Sector -
Certified Agreement 2005 (AG847206)
• Noweyung Ltd and HSU Disability Services Union Collective Agreement 2006 – 2009
(AC313290)
• Moe Life Skills Community Centre and HSU Disability Services Union Collective
Agreement 2006-2009 (AC317623)
• McCallum Disability Services Inc and HSU Disability Services Union Collective
Agreement 2006 – 2009 (AC313155)
• Murdoch Community Services Inc and HSU Disability Services Union Collective
Agreement 2006 – 2009 (AC313412)
[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
[2024] FWCFB 243 [Note: A copy of the zombie agreement to which this
decision relates (AC313290, AC317623, AC313155, AC313412) is
available on our website.]
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/agreements/approved/AC313290.pdf
https://www.fwc.gov.au/documents/agreements/approved/AC317623.pdf
https://www.fwc.gov.au/documents/agreements/approved/AC313155.pdf
https://www.fwc.gov.au/documents/agreements/approved/AC313412.pdf
[2024] FWCFB 243
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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. The relevant modern award is the Social, Community, Home
Care and Disability Services Industry Award 2020 (SCHADS Award).
[8] Where the Commission is satisfied that 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
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.
[9] It is put in the alternative that the default period for the Agreements 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.
1 [2023] FWCFB 105.
2 Id at [16].
3 Id at [17].
[2024] FWCFB 243
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[10] The applications seek to have the default periods extended for 4 years to 6 December
2027. The Commission may extend the default periods of the Agreements for no more than four
years.
The Applications
[11] Save for one of the applications, the grounds relied upon in each of the HSU applications
are identical (the HSU grounds). The difference in the one application is noted, but it is not
material. They are:
1. The Applicant contends that employees would be better off overall if the Agreement
continued to apply to them than if the relevant modern award applied.
2. The relevant modern award is the Social, Community, Home Care and Disability Services
Industry Award 2010, being the award that covers employers and employees in the social
and community services sector.
3. The Agreement contains several entitlements that are superior to those provided for by the
SCHADS Award.4
4. The Applicant submits that the criteria in subitem (9) are met, and further, that it is
appropriate to extend the Agreement for the following additional reasons:
a) The Applicant has consulted with members covered by the agreement and the
membership have indicated a firm desire to continue to be covered by it.
b) A review of the National Disability Insurance Scheme (NDIS) is currently
underway and due to provide a final report in October 2023. The outcome of that
review may change the bargaining position of the covered employees. For this
reason it is appropriate to extend the coverage of the agreement to allow the
parties to consider bargaining after accounting for any changes resulting from
that review.
c) The Federal Government are currently considering the recommendation arising
from the Disability Royal Commission’s report and are due to provide a response
in approximately March 2024. This response may change the bargaining position
of the covered employees. For this reason it is appropriate to extend the coverage
of the agreement to allow the parties to consider bargaining after accounting for
any changes resulting from that review.
5. The Applicant further submits that it is appropriate to extend the default period until a
decision arises from B2023/1235 Application for a supported bargaining authorisation –
social, community, home care and disability services sector. The matter is before Deputy
President Wright and directions were issued with respect to this matter on 22 November
2023.
4In one of the applications (AG2023/4554) the HSU specifies the following Agreement entitlements
as making the employees better off - 12 hour shifts, 21 days personal leave 5th year, Long Service
Leave - 1 week for 30 weeks service, 39 weeks accident pay, redundancy, discipline, 10% allowance
finish 6pm and 8am/start 6pm to 6:30am - Mon to Sun, 12% night shift - Mon to Sun, salary
packaging, HESTA default super fund.
[2024] FWCFB 243
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[12] While the Agreements are in similar terms, the workplaces in which they apply differ
markedly in the following ways: the number of employees to whom the agreements apply, the
manner in which the work regulated by the agreements is organised, and the work that is
performed in each of the workplaces. One employer asserts that the Agreement no longer
applies to any employees. The largest employer has 207 of a total of 555 employees that are
covered by the relevant Agreements. The differences in the workplaces no doubt arise because
the Agreements are all over a decade old and there have been many changes in the disability
sector in that time. Those changes include the merging of organisations, the tailoring of services
to meet client needs, and the introduction of the National Disability Insurance Scheme (NDIS).
[13] All of the applications are opposed. The grounds of opposition differ. We will deal with
the common elements of the applications first and then move to the circumstances and nature
of opposition unique to each application.
Common Matters
[14] The terms of each of the Agreements are similar. The Commission’s Agreements Team
conducted analyses of each of the Agreements and concluded in each case that 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 relevant Agreement continued to apply
than if the SCHADS Award applied. The analysis was provided to the parties and submissions
made in response.
[15] The analyses described the Agreements as covering weekly hire full time, part time and
casual residential and community service workers who would otherwise be covered by the
SCHADS Award. Employees can be engaged as shiftworkers under the Agreements and
provision is made for trainee and junior employees. The rates of pay under the Agreements are
less than the Award rates of pay and so are taken to be equal to the Award, due to item 13 of
Schedule 9 of the Transitional Act.
[16] For full time and part time employees otherwise covered by the SCHADS Award, the
Agreements generally provide less beneficial terms such as hours of work provisions with
longer ordinary hours, fewer part time safeguards, less beneficial part time overtime provisions,
lower shift penalty and overtime provisions. The Agreements provide either less beneficial
allowances or are silent compared to the SCHADS Award including less beneficial higher
duties provisions. The Agreements also provide less beneficial sleepover provisions. On a
macro analysis full time and part time employees do not appear to be better off overall.
[17] For casual employees the Agreements provide for less beneficial Sunday penalties. The
Agreements are also silent on minimum engagement and overtime provisions. Given these less
beneficial terms, casual employees cannot be considered better off overall under the
Agreements compared to the SCHADS Award.
[18] The Agreements provide a Half Day Model for employees otherwise covered by the
SCHADS Award. This allows employees to work a total of 38 half days in a four week period.
A half day is any consecutive period of 12 hours. The Agreements provide payments for these
arrangements that are currently above the Award, however, these rates appear to be in
compensation for weekly overtime, weekend penalties, shift penalties and sleepover
allowances. The Award does not contain this provision and the associated payments in the
Agreements are not high enough to compensate for the penalties that these number of hours
[2024] FWCFB 243
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potentially require and based on this, employees working these arrangements cannot be
considered better off overall.
[19] The HSU’s response to the macro analysis was to maintain that the employees would
be better off overall if the Agreement continued to apply to them than if the SCHADS Award
applied. The HSU pointed to the following benefits in the Agreements:
• Provision for fixed-term employment to complete specific tasks and/or projects or
for leave replacement. The SCHADS Award contains no equivalent provision.
• Provision for 44/52, 45/52, 46/52, 47/52, 48/52, 49/52, 50/52 or 51/52 models of
employment allowing employees to work fewer weeks in the year and be paid a
salary equal to the number of weeks worked spread over 52 weeks. The SCHADS
Award contains no equivalent provision.
• Provisions for a maximum of 3-months probationary employment. The SCHADS
Award does not contain any clause on probationary employment.
• Provision of a comprehensive discipline procedure. There is no discipline clause
under the SCHADS Award.
• Provisions for top-up of salary where an employee performs jury service. Jury
service provisions are not contained in the SCHADS Award.
• Provisions for retention of pre-reform award long service leave entitlements (1
weeks’ leave for every 30 weeks of continuous service). The SCHADS Award does
not contain long service leave provisions.
• Provisions for paid parental leave (6 weeks’ salary upon commencement of
maternity or adoption leave, 1 weeks’ salary upon commencement of paternity
leave). The SCHADS Award contains no paid parental leave entitlement.
• Provision for 1 day examination leave. The SCHADS Award contains no
examination leave entitlement.
• Provisions for accident make-up pay for up to 38 weeks where an employee
becomes entitled to weekly workers’ compensation payments. The SCHADS Award
contains no accident pay entitlement.
• A better dispute resolution clause that includes timeframes on certain steps within
the procedure, the availability of mediation, conciliation, or arbitration where the
dispute is referred to the Commission and a status quo provision. The SCHADS
Award does not provide any timeframes for dispute resolution, no status quo
provision and only consent arbitration.
• Time off in lieu for a period of time equivalent to the time worked as well as a period
of time equivalent to the overtime penalty incurred. Under the SCHADS Award
employees do not receive time off in lieu for a period of time equivalent to the
overtime penalty.
• Shift allowance provisions that apply to a broader range of shifts (6pm – 6:30am
Monday to Sunday) and provide that shift allowances are cumulative on weekend
penalties. The SCHADS Award contains shift allowances that are higher
percentage-wise, but apply to a narrower range of shifts (8pm – 6am Monday to
Friday) and are not cumulative on other penalties.
• A sleepover payment of $68.05 per sleepover. The SCHADS Award currently
provides a sleepover allowance of $55.89 per sleepover. Whilst the sleepover
payment under the Agreements include work performed up to one hour during the
sleepover and the Award states that work performed during a sleepover is paid at
time and a half with a minimum of 1 hour paid – the HSU submits that payment for
[2024] FWCFB 243
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time worked during a sleepover is rarely recognised or paid by employers in the
sector. Therefore, employees typically only receive the base sleepover
payment/allowance per night irrespective of any disturbances or work performed.
• The Agreement also provides minimum standards for amenities whereas the Award
does not.
• Personal leave entitlement of 12 days’ leave in the first year of employment, 14
days’ leave in the second, third and fourth years of employment and 21 days’ leave
thereafter. The SCHADS Award refers to the NES entitlement of 10 days’ personal
leave.
• Bereavement/compassionate leave of 3 days per occasion. The SCHADS Award
refers to the NES entitlement of 2 days compassionate leave per occasion.
[20] There was some debate about the sleepover allowance. The Agreements provide a
sleepover allowance which is $68.05 per sleepover which accounts for any work performed up
to 1 hour. The Agreement does not limit the length of a sleepover shift. Under the SCHADS
Award, the span for a sleepover is 8 continuous hours. If an employee under the Agreements
works a sleepover shift that is longer than 8 hours, they would not be better off overall. The
Agreements are also silent on minimum engagement if rostered to work before or after a
sleepover shift, the SCHADS Award provides that if rostered to work immediately before or
after a sleepover, the employer must roster or pay the employee for at least 4 hours work for at
least one of these periods of work. If no work is done during an 8-hour sleepover shift, then the
Agreements would be better than the SCHADS Award.
[21] The HSU also contended that the Agreement Team’s analysis was done at too general a
level and did not take into account the specific circumstances applying to the employees
covered by each of the Agreements. It was evident that in a number of cases the Commission
did not have sufficient information to assess the group of employees who continued to be
covered by the Agreements. In those cases, the applications must fail under subitem 6(a) as
absent sufficient information as to the way the group of employees covered by the agreement
works, we cannot be satisfied that the relevant group would be better off overall if the
Agreements continued to apply than if the SCHADS Award applied.
[22] We will now consider the three grounds relied upon by the HSU going to
appropriateness. The first asserts that the HSU had consulted its members covered by the
agreement and the membership had indicated a firm desire to continue to be covered by it. A
number of the employers stated that their employees had told them that they were not union
members. No evidence was provided of these consultations and no indication given of how
many of the employees to whom the Agreements applied were members of the HSU. Nor was
there evidence of the means by which the union consulted with the employees. The ground can
therefore be given little weight.
[23] The second and third appropriateness grounds go to recent reviews of the disability
services. There are two recent federal government reviews relating to the disability services
sector. We note that these matters have been considered relevant in earlier decisions of the
Commission under the Transitional Act seeking to extend the default period for zombie
agreements. See for instance the Kirinari Community Services Limited Hume Riverina Branch
- Certified Agreement 2006-2008 [2023] FWCFB 158 (Kirinari) at [36]. A more recent Full
Bench decision in Application by DPV Health Ltd [2024] FWCFB 174 at [9] observed:
[2024] FWCFB 243
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At the time of determining the application in Kirinari, the NDIS Review and the Royal
Commission recommendations had not yet been issued so it was not known what impact they
might have on bargaining. Since that time, the Royal Commission recommendations were issued
on 28 September 2023 and the NDIS Review was published on 27 October 2023. The parties
involved in bargaining for a new agreement to replace the Agreements have therefore had five
months to consider the implications of these matters and to incorporate them into their respective
claims so there is no basis to extend the Agreements for a longer period than is reasonably
necessary to finalise negotiations.
[24] That observation was in the context of the Commission extending the default periods
for two zombie agreements on the basis that subitem 20A(7) applied and bargaining had
commenced for replacement agreements. The observation however is relevant to a
consideration both of appropriateness under item subitem 6(a) and reasonableness under
subitem 6(b).
[25] The HSU response to the better off overall analyses included that if the Commission
were to find that the employees were not better off under the Agreements then it must extend
the default periods under subitem 20A(6)(b) because we should be satisfied that it is otherwise
reasonable in the circumstances to do so. In that regard the HSU relied upon the parties covered
by the Agreements being named in the application for a supported bargaining authorisation
(B2023/1235). That application – made jointly with the AEU is contested and yet to be heard.
The HSU submits that in an industry where there is high SCHADS Award-reliance, the leave
entitlements in the Agreements are significantly higher than the SCHADS Award entitlements
and other non-monetary benefits apply under the Agreements, preserving such conditions
provides employees with the best chance to achieve more beneficial terms and conditions
through bargaining.
Biala Penisula Inc – Health Services Union of Australia – Disability Services Sector Certified
Agreement 2005 (AG847206)
[26] Biala Peninsula Inc (Biala) is the employer described in clause 4 of the Biala Penisula
Inc – Health Services Union of Australia – Disability Services Sector Certified Agreement 2005
as the employer party bound by the Agreement. Biala is a not-for-profit charity organisation
and NDIS service provider providing early childhood and therapeutic support to children aged
0 to 12 and their families. The work performed by its employees includes therapeutic support
delivered by Occupational Therapists, Speech Therapists, Psychologists, Art Therapists, and
early childhood support delivered by Early Childhood Teachers and Therapists. It has 21 full
time, 26 part time and 2 casual employees. It contends that it is not covered by the Agreement
and that the Health Professionals and Support Services Award applies to its employees. It
asserts that it does not provide disability support services, nor does it employ disability support
workers. Biala submits that its employees are for the most part therapists and all employees are
now covered by the SCHADS Award. Biala has requested that it be excluded from the
application because its employees are not covered by the Agreement.
[27] The HSU was given an opportunity to respond to Biala’s submissions and the request
to be excluded from the application. No response was received.
[28] On the basis that Biala has no employees covered by the relevant Agreement we cannot
extend the default period for the Agreement under subitem 6(a) or 6(b). There is no group of
employees for the purpose of the better off overall criterion in subitem 9, so we are not required
to extend the default period under subitem 6(a) and in the circumstances described it is not
[2024] FWCFB 243
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reasonable under subitem 6(b) to extend an Agreement that does not apply to any of Biala’s
employees.
[29] The application is dismissed. In accordance with subitem (11) of Sch 3 of the
Transitional Act the Agreement ceases to operate at the date of this decision.
Noweyung Ltd and HSU Disability Services Union Collective Agreement 2006 – 2009
(AC313290)
[30] Distinctive Options (DO) has recently acquired the business of Noweyung Ltd. DO
inform 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 transferring employees.
[31] Noweyung Ltd also responded to the application and a request from the Commission
for information about its employees. Its response was that Noweyung Ltd staff transferred to
the SCHADS Award a number of years ago and that there was no union opposition to that
occurring. Noweyung Ltd contends it no longer has employees covered by the relevant
Agreement. Noweyung Ltd also does not support the application to extend the default periods
for the Agreement.
[32] In reply to DO and Noweyung’s responses the HSU contends that Noweyung did not
consult the HSU about staff transferring to the SCHADS Award. The HSU submits that the
Agreement still operates and applies to DO’s employees and staff should not have been
transferred to the SCHADS Award.
[33] The HSU also provided submissions in response to the Commission’s analysis on the
better off overall criterion as it related to the Agreement. The HSU presses its contention that
subitem (9) applies and that the award covered employees, when viewed as a group, are likely
to be better off overall if the Noweyung Agreement continues to apply.
[34] This is one of the matters that we are we are unable to be satisfied that subitem (9)
applies on the material available. The information about which employees are covered by the
Agreement is unclear. The hours that the employees work is also not clear. As we cannot with
any certainty identify the group of employees covered by the Agreement, we are unable to
determine whether such employees, when viewed as a group, would be better off overall if the
zombie agreement applied compared to the modern award. As we cannot be satisfied that
subitem (9) is satisfied we cannot extend the default period for the Agreement under subitem
6(a).
[35] The HSU submitted that the Commission should be satisfied under subitem 6(b) that it
is reasonable in the circumstances to extend the default period. The HSU points to the joint
supported bargaining authorisation application that has been made in conjunction with the
Australian Education Union (AEU) pursuant to s242 of the Fair Work Act 2009 (FW Act) to
permit multi-employer bargaining in the disability sector in Victoria. That application is yet to
be determined by the Commission. DO is a respondent to that application. The HSU submits
that extending the Agreement is reasonable because it will have the effect of preserving the
status quo in terms of wages and conditions whilst the supported bargaining application is being
determined. In doing so the Commission would be providing certainty in terms of wages and
conditions and preserve any bargaining leverage employees may have arising from the more
[2024] FWCFB 243
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beneficial conditions in the Agreement in the bargaining that is anticipated will follow the
granting of the application. The HSU also submits that in an industry where there is high
SCHADS Award-reliance, the more beneficial entitlements that the Agreement provides are
significant. Preserving such conditions provides employees with the best chance at maintaining
those more beneficial terms and conditions through bargaining.
[36] We agree with the HSU that it is reasonable to extend the default period for the
Agreement. In a recent decision a Full Bench dealt with similar arguments about the
reasonableness of extending agreements in the disability sector, Applications by Australian
Education Union [2024] FWCFB 233 (AEU Decision) the Full Bench determined to extend
the default periods for 11 zombie agreements that applied in workplaces which were subject to
the supported bargaining authorisation application. That decision included two agreements
applying to DO and its employees. The Full Bench there considered that the uncertainty about
the extent of the application of the two DO zombie agreements was a matter that supported the
extension of those agreements. The same reasoning applies here. The Full Bench also
considered that proposed bargaining is one way by which the uncertainty can be resolved.
[37] The Full Bench in the AEU decision also considered the following matters relevant to
the determination of those applications:
[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
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.
[38] While DO does not support the application here, we otherwise endorse the reasons given
in the AEU decision. They are applicable here. We consider it reasonable to extend the
Agreement pursuant to subitem 6(b).
[39] The HSU seeks a four-year extension. The Full Bench in the AEU decision extended
the agreements until 6 December 2024. The Full Bench considered that long enough to deal
with the matters raised in those applications and noted that it expected that during that time the
parties would work cooperatively to address the issues raised by the applications. We adopt the
same approach and will extend the agreement until 6 December 2024.
Moe Life Skills Community Centre and HSU Disability Services Union Collective Agreement
2006-2009 (AC317623)
[40] Life Skills Victoria Inc (LSV) is the employer covered by the Moe Life Skills Community
Centre and HSU Disability Services Union Collective Agreement 2006-2009. LSV opposes the
application. LSV is a registered NDIS participant and describes itself as a provider of high-
[2024] FWCFB 243
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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 three of whom are covered by the Agreement. Two of the employees
covered by the Agreement are part time while the other employee is full time.
[41] LSV is another employer respondent to the HSU and AEU applications for a supported
bargaining authorisation. It is also covered by another zombie agreement the Moe Life Skills
Community Centre Disability Services Victoria (Part 1) Collective Agreement 2008 (AEU
Agreement). The default period for that agreement was extended to 6 December 2024 in the
AEU Decision.
[42] LSV lodged applications on 25 October 2023 to terminate this agreement and the AEU
agreement. 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. The Agreements continued
to operate pending this decision.
[43] LSV submitted that the HSU was contacted and advised about the notice sent to
employees regarding the sunsetting of the zombie agreement which it believed had already been
terminated following the transition across to the SCHADS Award. LSV indicates that it had
sought the views of staff who agreed to the termination of the zombie agreement and did not
wish to make an extension application.
[44] LSV also contends it does not believe that employees would be better off if covered by
the Agreement given that the three employees covered have retained all additional leave
provisions.
[45] For the purpose of determining whether the better off overall criterion in subitem (9) is
met there is only information before the Commission about three employees of the 11
employees. Without further information about the nature of the work and employment
arrangements for all 11 employees, we cannot make a proper assessment of whether these
employees are ‘award covered employees’ to assess the factors prescribed in sub-item (9).
While it may be assumed that some employees are covered by the Agreement, if any are
performing other duties that may be covered by a different instrument, an issue arises about the
group to be considered for the better off overall test. Consequently, this is another matter in
which we cannot be satisfied that subitem (9) is satisfied and so cannot extend the default period
for the Agreement under subitem 6(a).
[46] We are of the view however that it is reasonable in the circumstances to extend the
default period of the Agreement pursuant to subitem 6(b). We are so satisfied for the same
reasons outlined above in relation to the Noweyung Ltd and HSU Disability Services Union
Collective Agreement 2006 – 2009. Similar circumstances apply here and there is another
zombie agreement that applies to LSV which has been extended. We also believe that in the
interest of certainty over the issues about the application of the Agreement, an issue that need
to be resolved and addressed, it is reasonable to extend the default period of the Agreement.
[2024] FWCFB 243
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[47] We will extend the default period for the Agreement under subitem 6(b) until 6
December 2024.
McCallum Disability Services Inc and HSU Disability Services Union Collective Agreement
2006 – 2009 (AC313155)
Murdoch Community Services Inc and HSU Disability Services Union Collective Agreement
2006 – 2009 (AC313412)
[48] McCallum Disability Services (MDS) is the employer covered by the McCallum
Disability Services Inc and HSU Disability Services Union Collective Agreement 2006 – 2009
and the Murdoch Community Services Inc and HSU Disability Services Union Collective
Agreement 2006 – 2009. The two Agreements are relevantly in the same terms providing the
same terms and conditions of employment. The latter was a transitional instrument that covers
MDS following a merger in 2012. MDS opposes the applications.
[49] MDS operates a business with a total of 555 employees. It provides various disability
services. Its employees are engaged under the two Agreements the subject of these applications,
the SCADS Award and The McCallum Disability Services Disability Services Victoria (Part 1)
Collective Agreement 2008 (AEU Agreement). The AEU Agreement is also a zombie
agreement. The default for the AEU Agreement was extended to 6 December 2024 by the Full
Bench in the AEU Decision.
[50] 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. These employees are engaged pursuant to the two
Agreements the subject of these applications. MDS also provides supported employment work
opportunities for people with disabilities. It has 256 employees in this part of the business.
These employees are engaged 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. A further 41 employees work in the Community
Connections area of the business and are engaged pursuant to an AEU zombie Agreement which
was extended by the AEU decision. MDS has 45 employees in other administration and
management roles not covered by any agreement.
[51] Of the 160 employees employed under the Agreements, 11 are full time employees, 66
part time employees and 83 are casual employees. At the time the Applications were made the
MDS’s residential services hours of operations were 7 days a week x 365 days a year. Rosters
commence at 6am with the evening shifts finishing at 10pm. A sleepover period then applies
from 10pm to 6am. Ordinary office hours for administration staff are between 8am and 5.30pm
with most staff working 8.30 – 5pm with a 1-hour unpaid lunch break.
[52] MDS contends that employees would not be better off if they remain covered by the
Agreements. MDS provided a detailed analysis of the remuneration payable under the
Agreement compared to the Award based on the current hours worked and submitted that all
employees would be financially worse off if the Agreements continue. MDS does not dispute
there are some provisions of the Agreements which provide for more beneficial entitlements
but contends there are others which counterbalance those provisions such that employees are
overall worse off.
[2024] FWCFB 243
12
[53] MDS seeks to standardise the terms and conditions across its operation and wish to do
so on the basis that for employees covered by the Agreements the SCAHDS Award applies in
place of the Agreements. This will permit greater uniformity in term of coverage by industrial
instruments across its workforce. Should the Agreements terminate it proposes to introduce
policies which will provide a number of above award conditions which it proposes to apply to
all employees. These include:
• Two days per year of paid leave “McCallum Leave” in addition to other paid leave
entitlements, to be used in the course of the year.
• An enhanced parental leave policy applying to all employees who would benefit
from the Government paid leave at minimum wage and have wages topped up by
MDS based on average earnings over the prior 12 months (this would apply for 2
weeks for a secondary carer).
• An increased sleepover allowance of $100 compared to the current rate of $74.90
with additional provision in specified circumstances to compensate those employees
who may have a disturbed night of sleepover with enhanced overtime entitlements.
• Application of the first Aid Allowance ($0.50 per hour) to all disability support
workers when undertaking frontline duties, where currently no allowance is required
or payable.
• McCallum would prior to the end of the 2023-24 financial year consider whether it
could introduce a system that allowed employees to purchase some extra paid leave.
[54] Currently, because there are different instruments that apply to the different areas of
MDS’ services, MDS has a number of employees, particularly in St Arnaud, a regional town,
who work under the Agreements and a combination of part time and casual contracts. MDS
describe a number of downsides to this for those employees including lack of job security,
insecure work patterns, and taxation issue. Once the employment arrangements across services
are standardised MDS proposes to offer these employees full time, or more hours on part time
contracts such that they benefit from greater job security, and the benefits that come with
permanent employment including overtime entitlements. If the Agreements continue operating,
MDS advises that none of these conversions will be able to be given effect to and the efforts to
provide more hours of work and security of employment lost.
[55] MDS provided detailed calculations of the earnings of employees should the
Agreements terminate. Those calculations are said to provide wage outcomes for the roster
period ending 10 December 2023 for all residential employees. Arising from those calculations
MDS contends that the Agreement covered employees would not be better off overall if the
Agreements continued to operate. The calculations show that the total wages bill for employees
working in residential services in the chosen fortnight was $225,329 under the Agreements and
$230,313 under the SCHADS Award. In other words, on wages the employees as a group would
be better off by $4,984 for the fortnight if the SCHADS Award applied. In particular, MDS
points to casual employees who, due to the 75% loading on Sundays under the Agreements,
rather than 125% under the SCHADS Award, would be clearly better off if the Award applied
– 83 of the 160 relevant employees are casual employees. This figure alone provides the
employees as a group, casual and permanent an extra benefit of $4,445 over the fortnight. MDS
suggests that 87 % of its employees under the Agreements will receive $67.53 higher wages
[2024] FWCFB 243
13
per fortnight if the Agreements terminate. The other 13 % will lose $23.93 per fortnight if the
Agreements terminate.
[56] The HSU challenged the calculations provided and point to a number of incorrect
assumptions underpinning them. In particular the HSU contended that MDS’ calculations on
sleepovers were incorrect, and the wrong allowance was used. It also pointed to the assumption
that all employees would be entitled to the first aid allowance should the SCHADS Award
apply. Taking into account these matters the HSU contended that the employees as a group
would be $28,006 worse off if the SCHADS Award applied. The HSU also points to the more
beneficial leave and the accident pay provisions in the Agreements as factors that make the
employees better off if the Agreements continue. The HSU also relies upon non-monetary
benefits such as the disciplinary procedure, probation period, and disputes procedures as factors
that make the Agreements more beneficial for employees than the SCHADS Award.
[57] Based on this material we are of the view that 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 Agreements continued to apply than if the SCHADS Award
applied is finely balanced. Casual employees are not better off under the SCHADS Award.
Permanent employees are also better of under the Agreements. Taking into account the
generous leave benefits in the Agreements for permanent employees and the more beneficial
non-monetary benefits we are satisfied that the better off overall criterion in subitem (9) is met,
and the employees covered by the Agreements taken as a group would be better off overall if
the Agreements continued to apply to them than if the SCHADS Award applied.
[58] 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 HSU 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
Agreements 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 its operations as uniform
as possible. It proposes to enter into a number of over award arrangements for all employees to
address some of the issues arising from the termination of the Agreements. Similarly to the
view taken by the Full Bench in the AEU decision, we do not believe the administrative
inconvenience associated with having to continue to afford the terms and conditions in the
Agreements for a limited period outweighs the appropriateness of allowing the HSU to attempt
to negotiate a replacement agreement, whether that is through supported bargaining for a multi-
employer agreement or otherwise.
Conclusion
[59] The HSU’s application relating to Biala in Matter AG2023/4545 is dismissed. In
accordance with subitem (11) of Sch 3 of the Transitional Act, the default period for the relevant
Agreement is extended to the date of this decision.
[60] For the foregoing reasons we have decided to extend the default period for each of the
following agreements:
• Noweyung Ltd and HSU Disability Services Union Collective Agreement 2006 – 2009
(AC313290)
[2024] FWCFB 243
14
• Moe Life Skills Community Centre and HSU Disability Services Union Collective
Agreement 2006-2009 (AC317623)
• McCallum Disability Services Inc and HSU Disability Services Union Collective
Agreement 2006 – 2009 (AC313155)
• Murdoch Community Services Inc and HSU Disability Services Union Collective
Agreement 2006 – 2009 (AC313412)
[61] We take the same approach as the Full Bench in the AEU Decision and 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 HSU 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 HSU.
[62] 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
PR774333
WORK THE SEAL OF TH DISSINK ISSION
[2024] FWCFB 243
15
Schedule 1
Matter
number
Enterprise Agreement Name Publication ID
AG2023/4554 Noweyung Ltd and HSU Disability Services Union
Collective Agreement 2006- 2009
AC313290
AG2023/4555
Moe Life Skills Community Centre and HSU Disability
Services Union Collective Agreement 2006-2009
AC317623
AG2023/4559 McCallum Disability Services Inc and HSU Disability
Services Union Collective Agreement 2006 – 2009
AC313155
AG2023/4560
Murdoch Community Services Inc and HSU Disability
Services Union Collective Agreement 2006 – 2009
AC313412
https://www.fwc.gov.au/document-search/view/3/aHR0cHM6Ly9zYXNyY2RhdGFwcmRhdWVhYS5ibG9iLmNvcmUud2luZG93cy5uZXQvZW50ZXJwcmlzZWFncmVlbWVudHMvSGlzdG9yaWNhbC8yMDA5LzIwMDkvMTEvY2F1bjA4NTA1OTM1My5wZGY1?sid=&q=AC317623
https://www.fwc.gov.au/document-search/view/3/aHR0cHM6Ly9zYXNyY2RhdGFwcmRhdWVhYS5ibG9iLmNvcmUud2luZG93cy5uZXQvZW50ZXJwcmlzZWFncmVlbWVudHMvSGlzdG9yaWNhbC8yMDA5LzIwMDkvMTEvY2F1bjA4NTA1OTM1My5wZGY1?sid=&q=AC317623
https://www.fwc.gov.au/document-search/view/3/aHR0cHM6Ly9zYXNyY2RhdGFwcmRhdWVhYS5ibG9iLmNvcmUud2luZG93cy5uZXQvZW50ZXJwcmlzZWFncmVlbWVudHMvSGlzdG9yaWNhbC8yMDA5LzIwMDkvNi9jYXVuMDg0NTU0NjkzLnBkZg2?sid=&q=AC313155
https://www.fwc.gov.au/document-search/view/3/aHR0cHM6Ly9zYXNyY2RhdGFwcmRhdWVhYS5ibG9iLmNvcmUud2luZG93cy5uZXQvZW50ZXJwcmlzZWFncmVlbWVudHMvSGlzdG9yaWNhbC8yMDA5LzIwMDkvNi9jYXVuMDg0NjI4MzY0LnBkZg2?sid=&q=AC313412
