A.Q.A. Victoria Limited T/A AQA Victoria

[2024] FWCFB 188

[2024] FWCFB 188 [Note: A copy of the zombie agreement to which this decision relates (AE875021) is available on our website.]

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 7, Item 30(4) - Application to extend default period for enterprise agreements made during the bridging period

A.Q.A. Victoria Limited T/A AQA Victoria

(AG2023/4725)

AQA VICTORIA LTD COLLECTIVE AGREEMENT 2009

Health and welfare services
DEPUTY PRESIDENT SLEVIN DEPUTY PRESIDENT GRAYSON COMMISSIONER THORNTON	SYDNEY, 22 MARCH 2024

Application to extend the default period for the AQA Victoria Ltd Collective Agreement 2009

1. A.Q.A. Victoria Limited T/A AQA Victoria (AQA Victoria or the Applicant) has applied pursuant to subitem 30(4) of Sch 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act), to extend the default period for the AQA Victoria Ltd Collective Agreement 2009 (the Agreement).

1. The Agreement was made during the ‘bridging period’ as defined Schedule 1 of the Transitional Act and approved under the Fair Work Act 2009 (Cth) (FWAct) on 23 March 2010.[1] Agreements made in the bridging period are a form of agreement that is referred to as a zombie agreement.

1. The Agreement applies to the Applicant and its employees who are employed as disability support workers.

1. The Agreement was to terminate at the end of the default period on 6 December 2023 in accordance with subitems 30(1) and 30(2) of Sch 7 to the Transitional Act unless an application was made under subitem 30(4) for that time to be extended. The application seeks to extend the default period to 5 December 2024.

1. The main aspects of the statutory framework for applications for the extension of zombie agreements are detailed in the Full Bench decision in Suncoast Scaffold Pty Ltd (Suncoast Scaffold).[2] The Full Bench in that case dealt with an application to extend a ‘WR Act agreement’ under item 20A of Sch 3 to the Transitional Act. The terms of item 20A of Sch 3 are relevantly the same as item 30 of Sch 7. The Full Bench’s analysis of those provisions applies equally to item 30 of Sch 7 and it is not necessary to repeat it here.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (SJBP Act) amended the Transitional Act to include item 30 in Sch 7. Subitem 30(6) provides that where an application is made under subitem 30(4) for the period to be extended, the Commission must extend the default period for a period of no more than four years if either:

(a)subitem (7) or (8) applies and it is otherwise appropriate in the circumstances to do so; or

(b) it is reasonable in the circumstances to do so.

1. The applicant seeks the extension on the basis that it has commenced bargaining and wants the opportunity to negotiate pay and conditions with their employees, which would ensure employees are better off overall than they would otherwise be under the Home Care classification and associated benefits of the Social, Community, Home Care and Disability Services Industry Award 2010.

1. The present application is made on the basis that subitem (7) applies. Subitem (7) applies if the application is made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same group of employees as the zombie agreement and bargaining for the proposed agreement is occurring.

1. The Applicant advised the Commission that they issued a Notice of Employee Representational Rights (NERR) to employees on 29 November 2023, notifying of its intention to negotiate a new agreement. A copy of the NERR was provided to the Commission.

1. The first bargaining meeting was scheduled to occur on 20 December 2023 with the Health and Community Services Union (HACSU), and further negotiations were intended to occur in January 2024.

Consideration

1. The Full Bench in ISS Health Services Pty Ltd[3] described the three requirements for subitem (7) to apply. The first is the requirement that the application is made at or after the ‘notification time’ for a proposed agreement as defined in s.173(2) of the FW Act. The second is that the proposed agreement must cover the same or substantially the same group of employees as the zombie agreement. The third is that bargaining for the proposed agreement must be occurring.

1. The application was made after the notification time for the proposed agreement. The proposed agreement covers the same group of employees, being the Applicant’s support workers. Bargaining has commenced.

1. We consider that the extension sought by the Applicant to 5 December 2024 is excessive. The Applicant advised the Commission that from May 2023 they were aware that the current agreement was a zombie agreement. We accept that the size of the workforce is large but note the involvement of bargaining representatives employed by HACSU and the steps the Applicant indicated they were planning to take to progress the bargaining. We have also taken into account the submissions of the Applicant that between May and December 2023 they prepared for the bargaining process by reviewing their employment conditions, completing market research and mapping their workforce against the relevant Award.

1. Considering the above, we are of the view that an extension until 6 June 2024 is sufficient time for a replacement agreement to be made and approved.

1. Pursuant to item 30(4) of Sch 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) we order that the default period for the Agreement is extended until 6 June 2024.

1. The Agreement is published, in accordance with subitem 30(9A)(c) of the Act, on the Fair Work Commission website.

DEPUTY PRESIDENT

[1] [2010] FWAA 2392.

[2] [2023] FWCFB 105 at [3]-[18].

[3] [2023] FWCFB 122 at [4].

Printed by authority of the Commonwealth Government Printer

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