Brophy Family and Youth Services Incorporated t/as Brophy Family and Youth Service

[2024] FWCFB 82 [Note: A copy of the zombie agreement to which this decision relates (AC314950) 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 instrument

Brophy Family and Youth Services Incorporated t/as Brophy Family and Youth Service

(AG2023/4693)

BROPHY FAMILY AND YOUTH SERVICES AND AUSTRALIAN SERVICES UNION ENTERPRISE AGREEMENT 2007-2010
Health and welfare services
DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT SLEVIN DEPUTY PRESIDENT GRAYSON	SYDNEY, 15 FEBRUARY 2024

Application to extend the default period for the Brophy Family and Youth Services and Australian Services Union Enterprise Agreement 2007-2010

Brophy Family and Youth Services Incorporated t/as Brophy Family and Youth Service applies pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), to extend the default period for the Brophy Family and Youth Services and Australian Services Union Enterprise Agreement 2007-2010 (the Agreement).

The application is made in accordance with subitem 20A(6)(a) on the grounds 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. The application was made after the notification time for the proposed enterprise agreement.

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

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 applicant has commenced bargaining for a replacement agreement and we consider that an extension until 6 June 2024 is sufficient time for a replacement agreement to be made and approved.

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 June 2024.

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

DEPUTY PRESIDENT

[1] [2023] FWCFB 122

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Brophy Family and Youth Services Incorporated, trading as Brophy Family and Youth Service, applied to the Fair Work Commission to extend the default period of an existing enterprise agreement. The application was made under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, and the case was heard by Deputy President Wright, Deputy President Slevin, and Deputy President Grayson. The existing agreement, the Brophy Family and Youth Services and Australian Services Union Enterprise Agreement 2007-2010, was nearing its expiration, and the applicant sought an extension to facilitate ongoing negotiations for a replacement agreement.

The legal issues before the court involved whether the application met the statutory criteria for an extension of the default period and if such an extension was appropriate. Specifically, the court needed to determine whether the applicant had initiated bargaining for a new agreement that would cover the same or a substantially similar group of employees and if the extension would allow sufficient time for the negotiation and approval of a new agreement. The Full Bench's previous decision in ISS Health Services Pty Ltd provided guidance on the requirements for such applications.

The Full Bench found that the application met the statutory criteria and was appropriate. The applicant had indeed commenced bargaining for a replacement agreement, and the court considered that an extension until 6 June 2024 would provide adequate time for the negotiation process to be completed and for the new agreement to be approved. The court extended the default period of the existing agreement until 6 June 2024, and the agreement was subsequently published on the Fair Work Commission’s website.

The court's decision allowed the applicant to continue negotiations for a new enterprise agreement without the immediate pressure of the existing agreement's expiration. This extension aimed to ensure a smooth transition and protect the interests of both the employer and employees during the negotiation period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established