1
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3A, Item 26A(4) - Application to extend default period for Division 2B State
employment agreements
Australian Nursing and Midwifery Federation
(AG2023/4590)
Nurses Matthew Talbot Hostel Society of St Vincent de Paul Enterprise
Agreement
Health and welfare services
DEPUTY PRESIDENT ROBERTS
DEPUTY PRESIDENT SLEVIN
COMMISSIONER THORNTON
SYDNEY, 4 JUNE 2024
Application to extend the default period for the Nurses Matthew Talbot Hostel Society of St
Vincent de Paul Enterprise Agreement
[1] The Australian Nursing and Midwifery Federation (ANMF or the Applicant) has
applied, pursuant to item 26A(4) of Schedule 3A to the Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009 (Cth) (Transitional Act), to extend the default period
for the Nurses Matthew Talbot Hostel Society of St Vincent de Paul Enterprise Agreement
(Agreement).
[2] The Agreement was approved on 31 August 1999 under s.35 of the Industrial Relations
Act 1996 (NSW). It is a Division 2B State employment agreement for the purposes of item 5 of
Schedule 3A of the Transitional Act. It is also a collective agreement-based transitional
instrument for the purposes of the Transitional Act. It has not terminated and so continues in
operation.
[3] The Transitional Act was amended by the Fair Work Legislation Amendment (Secure
Jobs, Better Pay) Act 2022 (Amendment Act) to provide for the automatic termination of all
remaining transitional instruments. The Amendment Act refers to transitional instruments as
‘zombie’ agreements. Pursuant to items 26A(1) and (2) of Schedule 3A to the Transitional Act,
Division 2B State employment agreements were to terminate on 6 December 2023 unless
extended by the Commission. The Agreement continues to operate pending our decision on the
application to extend the default period.
[4] Item 26A is relevantly in identical terms to item 20A of Schedule 3 to the Transitional
Act, which is concerned with the automatic sunsetting of, and applications for, extensions of
[2024] FWCFB 276 [Note: A copy of the zombie agreement to which this
decision relates (AG520003) is available on our website.]
DECISION
AUSTRALIA FairWork Commission
http://www.austlii.edu.au/au/legis/cth/num_act/fwlajbpa2022516/
http://www.austlii.edu.au/au/legis/cth/num_act/fwlajbpa2022516/
http://www.austlii.edu.au/au/legis/cth/num_act/fwlajbpa2022516/
https://www.fwc.gov.au/documents/agreements/approved/AG520003.pdf
[2024] FWCFB 276
2
the default period for agreement-based transitional instruments. The main features of item 20A
of Schedule 3 are described in detail in the Full Bench decision in Suncoast Scaffold Pty Ltd,1
and that analysis applies equally to item 26A of Schedule 3A.
[5] Under subitem (6) of item 26A, upon application, the Commission is required to extend
the default period for an agreement-based transitional instrument for a period of no more than
four years if the Commission is satisfied that:
(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.
[6] Subitem (7) applies if, inter alia, the application for extension is made at or after the
notification time for a proposed agreement and bargaining for a proposed agreement is
occurring. St Vincent de Paul Society NSW (the Employer) has indicated to the Commission
that it does not intend to bargain with the Applicant for a replacement agreement and no
bargaining is occurring. Therefore, subitem (7) does not apply.
[7] Subitem (8) applies to individual Division 2B State employment agreements which has
no application here.
[8] Subitem (9) of the Amendment Act says:
“This subitem applies if:
(a) the application relates to a collective Division 2B State employment agreement; and
(b) it is likely that, as at the time the application is made, the award covered employees
for the agreement under subitem (10), viewed as a group, would be better off overall
if the agreement applied to the employees than if the relevant modern award or
awards referred to in that subitem applied to the employees.”
[9] The ANMF’s application is made on the basis that the employees would be better off
overall if the Agreement continues to apply, rather than the relevant modern award. In the
alternative, they contend that subitem 6(b) applies and it is reasonable in the circumstances to
extend the default period. The ANMF seek an extension of the default period until 6 December
2027.
The Agreement
[10] The Agreement covers 7 employees (the relevant employees) engaged as registered
nurses at Matthew Talbot Homelessness Services, in the Matthew Talbot Hostel, a service from
which homeless and vulnerable men access accommodation and other support services.
Conditions of Employment
[11] The Agreement provides at clause 2.2 that all provisions of the “Nurses & c other than
in Hospitals & c (state) award” (pre-reform Award) shall apply except for salary rates.
[2024] FWCFB 276
3
[12] The ANMF submits that the pre-reform Award has since been superseded, initially by
the Nurses Award 2010 and subsequently by the Nurses Award 2020 (the Modern Award).
[13] The Agreement does not specify if the pre-reform Award is incorporated as it was at the
time the Agreement was made or if amended or replaced versions are taken to be incorporated
in the Agreement. The employer did not contend that the Modern Award was not the applicable
award for the purposes of determining the conditions of employment for the employees.
Rates of Pay
[14] Clause 2.1 of the Agreement says that the Agreement “shall determine the salary rates
for Nurses employed at the Matthew Talbot Hostel.”
[15] Clause 6.1 of the Agreement provides that: “Salary rates payable under this Agreement
will be equivalent to the salary rates paid under the Public Hospital Nurses (State) Award.”
(Public Hospital Award)
[16] Clause 6.2 of the Agreement specifies: ‘All future salary increases granted to the Public
Hospitals Nurses (State) Award will be paid to Nurses employed by Matthew Talbot Hostel
under this Agreement.”
Submissions
[17] The ANMF submits that the Public Hospital Award has since been replaced by the
“Public Health System Nurses and Midwives’ (State Award)” (the State Award). The ANMF
said that the most recent version of the State Award was made on 13 September 2023. The
ANMF argues that rates of pay for the relevant employees covered by the Agreement should
continue to mirror the rates of pay payable under the State Award from time to time. They say
this view is supported by clause 6.4 of the Agreement which specifies:
“If the Enterprise Agreement is not renegotiated at the expiration of 2 year period of
operation, the salary rates and the provisions of this Agreement will continue as
specified herein, or as amended from time to time during the course of the Agreement.”
[18] The ANMF also notes in its submissions that the relevant employees have, in the main,
received pay increases in line with the State Award by virtue of custom and practice in the
workplace.2 The Applicant says the freeze on pay increases in 2020 and 2021 for the employees
was consistent with state public sector wage freezes arising from the COVID pandemic and that
this supports the argument that the employees have received the same increases as are paid
under the State Award. The Applicant accepts the Respondent’s submission that wage increases
have not always been paid to the relevant employees in accordance with the State Award, but
argue, “this is the exception rather than the rule.”3 The Applicant also informed the
Commission that the employer had advised the relevant employees that it had decided not to
increase rates of pay in accordance with the State Award in 2023, which prompted the
application to extend the default period to ensure the rates of pay arising from the Agreement
continued to apply to the relevant employees.
[2024] FWCFB 276
4
[19] The employer submits that the relevant employees have not received pay increases in
line with the State Award at all times, and in fact received pay increases in accordance with the
‘federal annual wage review’ in 2015, 2019, and 2022.
[20] However, the employer also provided evidence of communication with employees at
Matthew Talbot Homeless Services, dating from 2011 and 2012 advising employees that “as
per previous practices, pay rate increases provided to public hospital nurses are to be applied
to Clinical Nurses”4 and “Health Clinic Nurses have had, as a matter of practice over a period
in excess of 10 years, their pay linked to the State-based public hospitals award pay rates.” 5
[21] The employer did not expressly confirm that the most recent pay increase payable under
the State Award was not afforded to the relevant employees but stated in their submissions:
“Until 1 July 2023, the actual pay rates have matched the state award and at time (sic) have
been higher.”
[22] The employer provided a table of the rates of pay currently paid to each of the 7 nurses.
The table makes clear that the rates of pay being paid to the relevant employees are now between
$0.26 and $0.35 per hour less than the State Award.
[23] The table also recognises that the current rates of pay (as previously benchmarked
against the State Award) are between 29 and 40 percent higher than the Modern Award.
[24] The Applicant seeks to extend the operation of the Agreement because the employees
covered by the Agreement would receive, in their submission, significantly reduced wages if
the Agreement was terminated and the rates of pay reverted to the Modern Award.
[25] The employer opposes the extension. They say that on account of staff turnover and
historical record keeping, they were unaware of the existence of the Agreement until recently
and when communicating with the employees covered with respect to pay increases, have
referenced the Modern Award and pay parity with the state health system.
[26] The ANMF says that the classifications of the relevant employees are not classifications
contained in the Modern Award and that the roles themselves have a “unique status” as
“specialised health care roles”6 and will only be maintained if the Agreement is extended. We
understand this submission to be that the Agreement contains specialised classification
descriptors but that the Modern Award would nonetheless cover the work of the employees if
the Agreement were terminated.
Incorporation of the Modern Award into the Agreement – Conditions of Employment
[27] The ANMF has argued that the Modern Award has application to the conditions of
employment of the relevant employees because the pre-reform Award is incorporated into the
Agreement, and it has been replaced by the Modern Award.
[28] The employer agrees that the conditions of employment of the relevant employees are
set by the Modern Award and, it seems, has applied the conditions from the Modern Award to
the employment of the relevant employees. Communications by the employer to employees,
referenced above, in both 2011 and 2012 note respectively that: “The applicable Modern Award
[2024] FWCFB 276
5
to your employment is the Nurses Award 2010” and “The conditions of employment will
continue to be that of the Nurses Modern Award.”
[29] We have not had the benefit of detailed argument about whether the conditions of
employment under the Agreement are those provided for in the pre-reform award or the Modern
Award. This is in part because the parties accepted that the Modern Award was the relevant
instrument, and it was applied as a matter of practice. In any event, the Commission’s analysis
of the pre-reform award and the Modern Award concluded that the conditions of employment
in the two awards were largely aligned. The exception is that the former award provides a
reduced casual loading of 10%, compared to 25% under the Modern Award. On the face of it,
it seems that the pre-reform award would have come into the federal system as a notional
agreement preserving a state award to be later superseded by the Modern Award.7 In that case
it is arguable that the Agreement reference to the pre-reform award should be read as a reference
to the Modern Award. However, because of the view we take of the Agreement’s provisions
relating to rates of pay set out below, it is unnecessary for us to express a concluded view on
the matter.
Relevance of the State Award to rates of pay provided by the Agreement
[30] The Public Hospitals Award is not strictly incorporated into the Agreement. Rates of
pay payable pursuant to the Agreement are, in effect, benchmarked against the Public Hospitals
Award. The Agreement sets the rates of pay by reference to increases made to the Public
Hospitals Award and provides that rates of pay in the Agreement “will be equivalent”8 to those
in the Public Hospitals Award.
[31] The Public Hospitals Award named in the Agreement was replaced by the State Award
by decision of the New South Wales Industrial Relations Commission of 23 February 2006.
Clause 58(i) of the State Award specifies: “This Award rescinds and replaces the Public
Hospital Nurses’ (State) Interim Award published 29 November 2002 … and all variations
thereof.”9
[32] It is clear enough that the effect of Clause 6 of the Agreement is that wage rates are to
increase as the rates in the Public Hospital Award are adjusted from time to time. Clause 6.2
says that “All future salary increases granted to the Public Hospital Nurses (State) Award will
be paid to Nurses employed by the Matthew Talbot Hostel under this Agreement.”
[33] We are also of the view that on a proper construction of clause 6, the rates payable under
the Agreement would include rates provided for in any award that supersedes the Public
Hospitals Award. We consider that the underlying intention of the clause is to provide a
mechanism for ensuring equivalency in the rates of pay payable under the Agreement with those
payable in the public hospital system. We are reinforced in that view by the words in clause
6.4 which provide “if the Enterprise Agreement is not renegotiated at the expiration of 2 year
period of operation, the salary rates and the provisions of this Agreement will continue as
specified herein, or as amended from time to time during the course of the Agreement”
(emphasis added).
[34] We also note that in 2012 the employer acknowledged that the nurses under the
Agreement “had, as a matter of practice over a period in excess of 10 years, their pay linked
[2024] FWCFB 276
6
to the State-based public hospitals award pay rates” and that the State Award “is only
referenced as it provides pay parity to the public healthcare system.”10
Better off Overall Analysis
[35] The ANMF provided, in their application, a table that set out the classifications in the
Modern Award, compared with comparable classifications in the State Award. The table also
included a comparison of pay rates applicable to those classifications in the Modern Award and
the State Award. That analysis showed variances of between 23.84 and 44.69 per cent between
the more favourable State Award and the less favourable Modern Award across the
classifications.
[36] As referenced above, the employer also provided relevant data in the form of a table,
including the actual rate of pay paid to each named employee covered by the Agreement,
compared to the rates contained in the State Award and the Modern Award. The table notes that
the actual rates of pay and the State Award rates of pay (between which there are minor
discrepancies) are between 29 and 42 per cent higher than the Nurses Award and 45 and 54 per
cent higher after salary packaging.
[37] Having regard to our conclusion as to the rates of pay that are payable under the
Agreement it is clear that these rates of pay payable are significantly higher than the rates of
pay in the Modern Award. It follows that the employees will be better off overall if the
Agreement remains operative.
[38] The employer has confirmed that in general terms it “is prepared to commit to paying
wage rates that will be significantly higher than the Nurses Award, as it currently does”.11 It
also said that terminating the Agreement would allow it the flexibility to manage costs to ensure
financial viability.
Otherwise appropriate to extend the default period
[39] Pursuant to item 26A(6) of the Transition Act, the Commission must extend the default
period if it is satisfied that subitems (7), (8) or (9) apply and it is “otherwise appropriate” in the
circumstances to do so.
[40] As we have found that subitem (9) does apply in these circumstances, we must now
consider if it is otherwise appropriate to extend the default period.
[41] In the matter of Suncoast Scaffold Pty Ltd as trustee for the Warren Family Trust12
(Suncoast) the Full Bench held that:
“‘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.” (footnote omitted).
[2024] FWCFB 276
7
[42] There are a number of factors weighing in favour of a conclusion that it is otherwise
appropriate to extend the default period, and others that weigh against.
[43] Factors weighing in favour of an extension include:
(a) If the employer were to revert to the rates of pay in the Modern Award (or even rates
above those rates but less than what is currently paid), a significant reduction in pay
would result for the relevant employees.
(b) The employer has only offered a commitment to pay rates “significantly higher the
Nurses’ Award” but has not specified what those rates will be, how much the rates
will exceed the Modern Award and that increases will be made annually.
(c) If the parties are to rationalise the present employment arrangements by negotiating
an enterprise agreement some period of time will be necessary for those negotiations
to occur and an agreement finalised.
(d) There is no evidence that extending the default period will cause the employer any
financial difficulty or otherwise have an impact on the funding of the services they
provide.
[44] Factors weighing against an extension include:
(a) The Agreement is very old and contains outdated references to instruments that have
long since been superseded.
(b) The policy preference in the legislative scheme for employees covered by
transitional instruments to become regulated by instruments made by the Fair Work
Act 2009 (Cth).13
[45] On balance, we find the factors weighing in favour of granting an extension more
persuasive.
[46] As we are satisfied that the requirements under 26A(6)(a) are met, we must extend the
default period for the Agreement for a period of no more than four years. The applicant has
sought an extension until 6 December 2027. We do not consider that the default period should
be extended for the maximum period when there is no plan or steps taken to transition the
relevant employees to a new Fair Work Act Agreement or otherwise incorporate them into
another appropriate enterprise agreement (should one exist) at the relevant time. There are well-
known avenues that can be taken under the Fair Work Act by the employees and the ANMF to
secure the pay and conditions in a new agreement.
[47] An extension for four years will not provide sufficient encouragement to the parties to
attend to the issues arising from this almost 25-year-old zombie agreement.
[48] We have also taken into account the objections raised by the employer to the extension
of the default period and the practical difficulties with paying increases in accordance with the
[2024] FWCFB 276
8
State Award when they are liable to pay increases in accordance with other applicable federal
awards across their workforce at different times. We also consider that the employer should not
be bound to the Agreement for any longer than is necessary to transition the employees to a
new Fair Work Act instrument.
[49] Adopting the reasoning of the Full Bench in Application by Peter Michael Frick14we
consider that a number of steps may be necessary in this matter to commence bargaining,
including seeking a majority support determination under section 236 of the Fair Work Act. In
this matter, the group of relevant employees is very small, which should reduce the time needed
to take the relevant steps in the bargaining process. On that basis we consider that a period of
approximately seven months from the date of this decision is appropriate for the parties to
secure the employees’ pay and conditions in a new enterprise agreement.
[50] The default period for the Agreement is therefore extended to 31 December 2024.
Orders to give effect to this decision will be published separately.
[51] The Agreement is published, in accordance with item 26A(10A)(c) of Sch 3 to the
Transitional Act, as an annexure to this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
AG520003 PR775634
1 [2023] FWCFB 105.
2 Submissions of Applicant.
3 Email from ANMF to Fair Work Commission dated 9 January 2024.
4 Memorandum, St Vincent De Paul Society dated 6 June 2011.
5 Memorandum, St Vincent De Paul Society dated 26 March 2012.
6 See submissions of the Applicant at paragraph 3t.
THE WORKCO THE S 1 MMISSION
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb105.pdf
[2024] FWCFB 276
9
7 See Part 2 of Schedule 5 of the Transitional Act.
8 The Agreement at clause 6.1.
9 New South Wales Industrial Relations Commission (Industrial Gazette), 23 February 2006, Vol 357, part 2, page 345 –
clause 58(i).
10 Memorandum from St Vincent de Paul Society, 26 March 2012.
11 See correspondence from employer to Fair Work Commission dated 11 December 2023 at (k)
12 [2023] FWCFB 105 at [16]
13 See Application by Peter Michael Frick [2023] FWCFB 137 at [32].
14 Ibid at [35].
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb105.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb137.pdf
