Australian Municipal, Administrative, Clerical and Services Union

[2024] FWCFB 271

[2024] FWCFB 271 [Note: A copy of the zombie agreement to which this decision relates (AG816405) is available on our website.]

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

Australian Municipal, Administrative, Clerical and Services Union

(AG2024/716)

VILLAMANTA LEGAL SERVICES INCORPORATED CERTIFIED AGREEMENT 2002

Health and welfare services
DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT SLEVIN      COMMISSIONER CRAWFORD	SYDNEY, 29 MAY 2024

Application to extend the default period for the Villamanta Services Incorporated Agreement 2002

1. The Australian Municipal, Administrative, Clerical and Services Union (ASU) has applied, pursuant to item 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act2009 (Cth) (Transitional Act), to extend the default period for the Villamanta Services Incorporated Agreement 2002 (Agreement). The Agreement was approved on 11 June 2002 in accordance with s.170LT of the Workplace Relations Act 1996. It is an agreement-based transitional instrument to which item 20A applies. Villamanta Disability Rights Legal Service Incorporated (Villamanta), the employer covered by the Agreement, supports the application.

1. The Applicant lodged an earlier application on 1 September 2023 pursuant to 20A(4) of Sch 3 to the Transitional Act to extend the default period of the Agreement for a twelve-month period. In a decision issued on 8 November 2023 the Full Bench considered that the requirements in subitem (6)(a) were met and it was appropriate in the circumstances to extend the Agreement. The Full Bench ordered that the default period for the Agreement be extended by 4 months until 6 April 2024 to allow sufficient time for the parties to finalise a replacement enterprise agreement.[1] 

1. The current application lodged on 13 March 2024 seeks to extend the Agreement until 6 August 2024. The application was made, in accordance with subitem (6)(a), on the ground that bargaining is occurring for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as are covered by the Agreement and that it is appropriate to do so.

1. The Full Bench in ISS Health Services Pty Ltd[2] described the requirements that must be met for an application to extend the default period under subitem (6)(a) where bargaining for a replacement agreement is made.

1. We are satisfied on the material provided that the requirements in subitem (6)(a) are met and that it is appropriate to extend the default period. The ASU submitted that this application is also made by consent of Villamanta and unanimously endorsed by the ASU membership. The ASU indicated that parties have increased the frequency of bargaining in February and March and remain committed to negotiating a replacement agreement in a timely manner.

1. We do note that the ASU had indicated to the Commission in its previous application that bargaining is likely to conclude in early 2024. We would ordinarily be reluctant to extend an Agreement in circumstances where the parties have failed to meet a stated objective of finalising an agreement in a specified timeframe. However, taking into account the matters we considered when granting the initial extension, which included the small size of the workplace, the lack of specialist assistance for the employer, and the detrimental impact of the Agreement expiring on employees’ terms and conditions, together with the parties’ commitment to increasing the frequency of bargaining to meet an August deadline, we consider that extending the Agreement for an additional four-month period should allow sufficient time for the parties to finalise a replacement enterprise agreement.

1. We noted in the first decision that the Commission is available to assist the parties should negotiations not progress as intended. We repeat those observations. 

1. Pursuant to item 20A(6) of Sch 3 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 August 2024.

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

DEPUTY PRESIDENT

[1] [2023] FWCFB 206.

[2] [2023] FWCFB 122.

Printed by authority of the Commonwealth Government Printer

<AG816405  PR775430>