Cancer Council Victoria T/A Cancer Council Victoria
[2023] FWCFB 199
•31 OCTOBER 2023
| [2023] FWCFB 199 [Note: A copy of the zombie agreement to which this decision relates (AC303665) 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
Cancer Council Victoria T/A Cancer Council Victoria
(AG2023/3593)
THE CANCER COUNCIL OF VICTORIA COLLECTIVE AGREEMENT 01/2006
| Health and welfare services | |
| DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT ROBERTS DEPUTY PRESIDENT SLEVIN | SYDNEY, 31 OCTOBER 2023 |
Application to extend the default period for the Cancer Council of Victoria Collective Agreement 01/2006
The Cancer Council of Victoria (Cancer Council) 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 Cancer Council of Victoria Collective Agreement 01/2006 (Agreement). The Agreement was made under the Workplace Relations Act1996 (Cth) and is an agreement-based transitional instrument to which item 20A applies.
The application seeks to extend the Agreement for a period of 12 months, until 6 December 2024. The Australian Nursing and Midwifery Federation (ANMF) and the Community and Public Sector Union (CPSU), being organisations of employees said to be entitled to represent the industrial interests of one or more employees covered by the Agreement, both support the application.
Item 20A of Sch 3 to the Transitional Act provides for the automatic sunsetting of agreement-based transitional instruments by the end of the default period on 6 December 2023, subject to the capacity to apply to the Commission for an extension of that period for up to four years in prescribed circumstances. The agreements to which these provisions apply are commonly known as zombie agreements. The main features of item 20A of Sch 3 are described in detail in the Full Bench decision in Suncoast Scaffold Pty Ltd[1] and we rely upon what is said in that decision.
Relevantly, when an application is made under subitem (4) of item 20A of Sch 3 to the Transitional Act 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.
The application is advanced on the basis that subitems (7) applies and it is otherwise appropriate in the circumstances to extend the default period.
The Full Bench in ISS Health Services Pty Ltd[2] 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 Fair Work Act 2009 (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 Full Bench stated that this could be established by comparing the Notice of Employee Representational Rights (NERR) for the proposed agreement to the coverage clause of the zombie agreement. The third is that bargaining for the proposed agreement must be occurring.
The Applicant advised the Commission that on or about 4 April 2023 it issued a NERR to employees notifying of its intention to negotiate a new agreement. A copy of the NERR was provided to the Commission.
After the NERR was issued, bargaining commenced with the ANMF, CPSU and individual employee bargaining representatives. The bargaining committee met on three occasions prior to the lodgement of the application. A further meeting was scheduled to occur on 24 October 2023.
The NERR refers to an enterprise agreement covering employees who are non-executive employees and currently employed under the terms of the Agreement.
The uncontested material provided by the parties is sufficient to allow us to form a view as to the requirements of subitem (7). First, the NERR shows that the Applicant agreed to bargain or initiated bargaining in April 2023 and that there was a notification time for a proposed agreement. The application for extension of the Agreement was filed after the notification time for a proposed agreement. Second, the group of employees covered by the proposed agreement, as described in the NERR, is the same or substantially the same as the coverage of the Agreement. Finally, the parties agree that bargaining has commenced and is currently occurring. On this basis, we are satisfied that subitem (7) applies.
As subitem (7) is met, subitem 6(a) requires a consideration of whether it is otherwise appropriate in the circumstances to extend the default period. In ISS Health Services, the Full Bench considered it appropriate to do so where the parties sought time to negotiate a replacement agreement and are not simply seeking to extend an agreement for the maximum period for the sake of convenience.
The Applicant submitted that it is appropriate to extend the default period in all the circumstances. It contended that the proposed agreement would cover the same employees as the Agreement. Various employees of the Applicant are presently covered by 6 modern awards, and a significant number of employees are not covered by a modern award. The modern awards are different to the awards that applied when the Agreement was entered into in 2006, partly because of changes to the Applicant’s structure. The Applicant said that the negotiations were likely to be complex having regard to the need to harmonise the conditions of each award into a new agreement.
The Applicant submitted that it was unlikely that bargaining and agreement approval would be finalised before 6 December 2023 and that it would be disruptive to the bargaining process for employees to revert to award conditions during the course of bargaining. We note that in oral submissions the Applicant confirmed that many existing rates and conditions were superior to those provided for in the Agreement and that these superior benefits were applied as a matter of policy by the Applicant. The Applicant also indicated that it had agreed with bargaining representatives that the current conditions would continue to apply during the term of any extension period that was granted. The ANMF and CPSU supported these submissions.
We are satisfied that it is appropriate to extend the default period for the Agreement. The Applicant and the bargaining representatives are actively bargaining and are committed to finalising a replacement agreement. In the circumstances we think it is appropriate to extend the Agreement beyond 6 December 2023 to allow them to do so.
As we are satisfied that subitem 6(a) applies, we are required to extend the default period. As the Full Bench observed in Suncoast Scaffolding Pty Ltd[3] the Commission has a discretion as to the length of the extension, subject to the limitation that the extension cannot be for more than four years. The nature of the discretion is such that we are not bound to grant the period of extension sought in the application.[4]
In ISS Health Services Pty Ltd[5] the Full Bench ordered an extension of 12 months in circumstances where subitem (7) applied. The Full Bench considered this sufficient time for a replacement agreement to be finalised in circumstances where there was some complexity in the bargaining, including issues of contested scope. The Full Bench noted that should the parties require assistance to finalise an agreement then s.240 of the FW Act provides access to the Commission to resolve any disputes that arise. The Full Bench noted that the additional 12 months amounted to an 18-month period in which to conclude an agreement as the NERR in that matter had been issued in June 2023.[6]
In this matter, we have had regard to the joint position of the parties that more time is necessary to accommodate negotiations covering almost 400 employees. The proposed agreement will cover a group of employees who would otherwise be covered by six different modern awards. These awards are different to the awards which underpin the current Agreement. These are matters which add complexity to the bargaining process. We note that the Agreement is now almost 17 years old and accept that any replacement agreement will need to be re-written to align it with the current legislative framework and the present needs of the Applicant and its workforce. We have also had regard to the associated costs and disadvantages of reverting to award provisions for a potentially short period. We regard it as likely that bargaining may not conclude before December 2024 in this case. This weighs against extending the default period for a shorter period than that requested by the parties.
In all the circumstances we propose to extend the default period for this agreement by a period of 12 months which should, in our view, allow sufficient time for the parties to finalise a replacement enterprise agreement.
An order extending the default period for the Agreement by 12 months, to 6 December 2024, will be published separately. The Agreement is published, in accordance with subitem (10A)(c), as an Annexure to this decision.
DEPUTY PRESIDENT
[1] [2023] FWCFB 105.
[2] [2023] FWCFB 122 at [4].
[3] [2023] FWCFB 105 at [18].
[4] See Suncoast Scaffolding Pty Ltd id and Applications by APESMA [2023] FWCFB 137 at [31].
[5] [2023] FWCFB 122.
[6] See also Application by Australian Municipal, Administrative, Clerical and Services Union [2023] FWCFB 188.
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