Application by Independence Australia

[2024] FWCFB 172

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 3, Item 20A(4) - Application to extend default period for agreement-based transitional instruments

Application by Independence Australia

(AG2023/4422)

PARAQUAD VICTORIA STAFF ENTERPRISE AGREEMENT 2008

Health and welfare services
DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT SLEVIN DEPUTY PRESIDENT GRAYSON	SYDNEY, 20 MARCH 2024

Application to extend the default period for the ParaQuad Victoria Staff Enterprise Agreement 2008

Introduction

Independence Australia applies pursuant to subitem 30(4) of Sch 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) to extend the default period for the ParaQuad Victoria Staff Enterprise Agreement 2008 (the Agreement). Sch 7 applies to enterprise agreements made during the bridging period. However, the Agreement is a collective agreement-based transitional instrument and item 20A of Sch 3 applies.

We will consider the application as if it was made under made under subitem 20A(4) of Sch 3. Under subitem 20A(1) the Agreement was to terminate on 6 December 2023.

The application was made, in accordance with subitem (6)(b), on the ground that it is reasonable in the circumstances to extend the default period where an enterprise agreement has been approved by the Commission under the Fair Work Act 2009 and the replacement agreement covers the same, or substantially the same, group of employees as are covered by the Agreement. At the time this application was made the replacement agreement had not yet been approved by the Commission.

The Commission has since approved the replacement agreement.[1] The replacement agreement commenced operation on 1 February 2024. The purpose of the extension is to ensure the Agreement continued to apply for the period between the termination date of 6 December 2023 in subitem 20A(1) up until the replacement enterprise agreement commenced.

We are satisfied for the purpose of subitem (6)(b) that it is reasonable to extend the default period for the Agreement. Pursuant to item 20A(4) of Sch 3 to the Transitional Act, we order that the default period for the Agreement is extended until 7 days after the approval decision of the new replacement agreement on 1 February 2024.

The Agreement is published, in accordance with subitem 20A(10A)(c), on the Fair Work Commission’s website.

DEPUTY PRESIDENT

[1] [2024] FWCA 327.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application by Independence Australia, concerning the extension of the default period for the ParaQuad Victoria Staff Enterprise Agreement 2008, was heard by the Fair Work Commission. The agreement in question was set to terminate on 6 December 2023, but Independence Australia sought an extension under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. This application was made on the basis that it is reasonable to extend the default period due to the circumstances surrounding the approval of a replacement agreement by the Commission, which had not yet been approved at the time of the application. The Commission has since approved the replacement agreement, which now commences operation on 1 February 2024.

The legal issues before the Commission revolved around whether it was reasonable to extend the default period for the Agreement. The key consideration was whether the extension was justified under subitem 20A(4) of Schedule 3 of the Transitional Act, particularly in light of the replacement agreement covering the same or substantially the same group of employees. The Commission had to balance the transitional needs against the statutory requirements and the implications for the affected employees. The application was made in accordance with the relevant subsection, and the Commission had to determine if the circumstances warranted the extension to ensure continuity of the Agreement until the new agreement took effect.

The Commission found that it was reasonable to extend the default period for the Agreement. They determined that the extension was necessary to ensure that the Agreement continued to apply until the new replacement agreement commenced operation on 1 February 2024. By extending the period until 7 days after the approval of the new agreement, the Commission aimed to provide a smooth transition for the employees affected by the Agreement. The decision was based on the premise that such an extension would not cause significant disruption and would allow for the orderly implementation of the new agreement. The Commission's decision was made pursuant to item 20A(4) of Schedule 3 to the Transitional Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established