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Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 20A(4) - Application to extend default period for agreement-based transitional
instruments
Health Services Union
(AG2024/3921)
MELBOURNE CITYMISSION RWSIDENTIAL/AUPPORT SERVICES
AGREEMENT 2007
ABLE AUSTRALIA COLLECTIVE AGREEMENT
Health and welfare services industry
DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT ROBERTS
DEPUTY PRESIDENT SLEVIN
SYDNEY, 8 NOVEMBER 2024
Application to extend the default period for the Melbourne Citymission Residential/Support
Services Agreement 2007 and the Able Australia Collective Agreement
[1] The Health Services Union (the Applicant) has applied pursuant to subitem 20A(4) of
Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
(Cth) (the Transitional Act) to extend the default period for two agreements, the Melbourne
Citymission Residential/Support Services Agreement 2007 (AC312394) and the Able Australia
Collective Agreement (AC315302) (together, the Agreements). The applications are supported
by the relevant employer, Able Australia.
[2] A previous application was made by Able Australia on 22 September 2023 and we made
orders in a decision published on 23 November 2023 which extended the default periods to 6
December 20241 (the first decision).
[3] Subitem (2) of item 20A of Sch 3 to the Transitional Act makes it clear that a default
period can be extended on one or more occasions. The Applicant seeks a further extension to
the default periods of six months such that the Agreements terminate on 6 June 2025.
[4] Relevantly, when an application is made under subitem (4) of item 20A, the
Commission is required under subitem (6) to extend the default period if the Commission is
satisfied that subitem (7), (8) or (9) applies and it is otherwise appropriate in the circumstances
to do so. Subitem (7) applies when parties are bargaining for a replacement agreement.
[5] Both the previous and present applications have been made on the grounds that subitem
(7) applies. Subitem (7) applies when parties are bargaining for a replacement agreement. The
[2024] FWCFB 423[Note: A copy of the zombie agreement to which this
decision relates (AC312394) (AC315302) is available on our website.]
DECISION
AUSTRALIA FairWork Commission
http://www.fwc.gov.au/documents/agreements/approved/AC312394.pdf
http://www.fwc.gov.au/documents/agreements/approved/AC315302.pdf
[2024] FWCFB 423
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parties are currently engaged in bargaining for a proposed enterprise agreement that will cover
the same or substantially the same group of employees as are covered by the Agreements. The
background to the bargaining for the replacement agreement is set out in the first decision2.
That background and the material before the Commission in this application establishes that
bargaining for a replacement agreement is ongoing. Accordingly, we are satisfied subitem (7)
of Item 20A of Sch 3 of the Transitional Act applies.
[6] Where subitem (7) applies, the Commission must be satisfied pursuant to subitem 6(a)
that it is otherwise appropriate in the circumstances to extent the default period.
[7] In the first decision we referred to factors relevant to a consideration of when it will be
appropriate to grant an extension under subitem 6(a)3. In particular we noted, following the Full
Bench decision in ISS Health Pty Ltd4, that it is appropriate to do so where:
(a) the parties seek time to negotiate a replacement agreement and are not simply
seeking to extend an agreement for the sake of convenience;
(b) where there is complexity in the negotiations arising from factors such as the
number of employees and work sites to be covered by the replacement agreement;
and
(c) where the employees would be better off overall while the Zombie agreements were
in place.
[8] We set out the background relevant to negotiating a replacement agreement in the first
decision at [12]. This included that the bargaining process is complicated due to the diverse and
fragmented worksites covered by the Agreements, that the employees are casual and temporary
making it difficult for bargaining representatives to gain instructions from the employees, and
the need to bring employees currently on different terms and conditions under one agreement.
The parties also agreed, and we accept, that the employees would be better off under the
Agreements than if the award applied.
[9] The circumstances described in our first decision still apply. We note that while the
negotiations did not commence as soon as anticipated following the first decision, there have
been concerted efforts to progress negotiations towards the replacement agreement. The HSU
provided a timeline of bargaining and anticipates that a replacement agreement will be finalised
by June 2025.
[10] On the basis of the material before the Commission, we are satisfied for the purpose of
subitem (6)(a) that it is otherwise appropriate to extend the default periods for the Agreements.
[11] Accordingly, pursuant to subitem (6) we must extend the default periods.
[12] We order that the default periods for the Agreements are extended to 6 June 2025
pursuant to item 20A(4) of Sch 3 to the Transitional Act.
[13] The Applicant indicates that there are a number of issues where the parties are still apart
but that assistance of the Commission to finalise agreement has not been sought. We note that
the Commission is available pursuant to s.240 of the Fair Work Act 2009 to assist the parties in
finalising the agreement should it appear that agreement may not be reached in the further
extended timeframe. We encourage the parties to take that course should it become necessary.
[2024] FWCFB 423
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[14] The Agreements are published, in accordance with subitem 20A(10A)(c), on the Fair
Work Commission’s website.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR781058
1 [2023] FWCFB 221
2 Id at [9]
3 At [11]
4 [2023] FWCFB 122
OF THE FAIR WORK L MISSION THE SEA
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb221.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb122.pdf
