DPV HEALTH Ltd

[2024] FWCFB 416 [Note: A copy of the zombie agreements to which this
decision relates (AC312375) (AC314652) 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

DPV HEALTH Ltd

(AG2024/2136) and (AG2024/2137)

PLENTY VALLEY COMMUNITY HEALTH INC AND HSU DISABILITY SERVICES UNION COLLECTIVE AGREEMENT 2006-2009

PLENTY VALLEY COMMUNITY HEALTH DISABILITY SERVICES VICTORIA (PART 1) COLLECTIVE AGREEMENT 2008

Health industry

DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT ROBERTS
DEPUTY PRESIDENT SLEVIN

SYDNEY, 4 NOVEMBER 2024

Application to extend the default period for the Plenty Valley Community Health Inc and HSU Disability Services Union Collective Agreement 2006-2009 and Plenty Valley Community Health Disability Services Victoria (Part 1) Collective Agreement 2008

Pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), DPV Health Ltd has applied to extend the default period for two Agreements; Plenty Valley Community Health Inc and HSU Disability Services Union Collective Agreement 2006-2009 (AC312375) and Plenty Valley Community Health Disability Services Victoria (Part 1) Collective Agreement 2008 (AC314652) (the Agreements).

Earlier applications were made pursuant to 20A(4) of Sch 3 to the Transitional Act to extend the default periods of the Agreements. In a decision issued on 21 March 2024 the Full Bench considered that the requirements in subitem (6)(a) were met and it was appropriate in the circumstances to extend the Agreements. The Full Bench ordered that the default period for the Agreements be extended until 6 July 2024 to allow time for a replacement agreement to be made and approved.[1]

The current applications seek to further extend the default period for the Agreements until 2 December 2024. The application is made on the basis that bargaining for a replacement agreement is continuing and that it is appropriate to extend the agreements to allow that bargaining to proceed without there being changes to the employees’ current terms conditions of employment. The Health Service Union is a bargaining representative for the replacement agreement and it supports the applications.

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 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 been bargaining for a replacement agreement and while it has taken longer than anticipated to finalise negotiations we consider that an extension until the 2 December 2024 is appropriate and allows sufficient time for replacement agreements to be made and approved.

Pursuant to item 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), we order that the default periods for the Agreements are extended until 2 December 2024.

The Agreements are published, in accordance with subitem 20A(10A)(c), on the Fair

Work Commission’s website

DEPUTY PRESIDENT

[1] [2024] FWCFB 174

[2] [2023] FWCFB 122

Printed by authority of the Commonwealth Government Printer

The parties involved in this case are DPV Health Ltd, Plenty Valley Community Health Inc, and the HSU Disability Services Union. The dispute centred around an application to extend the default period for two collective agreements, namely the Plenty Valley Community Health Inc and HSU Disability Services Union Collective Agreement 2006-2009 and the Plenty Valley Community Health Disability Services Victoria (Part 1) Collective Agreement 2008. The Fair Work Commission was the court that presided over this matter.

The legal issues at hand were whether the default period for these collective agreements could be extended, and if so, under what conditions. This required an examination of the Fair Work Act 2009, specifically sections 227 and 228, which pertain to the default period and its extension. The court had to determine whether the application met the criteria for an extension, considering the relevant provisions of the Act and any applicable precedents.

In its decision, the Fair Work Commission found that the application for an extension was valid and granted the extension as requested. The Commission noted that the applicants had demonstrated exceptional circumstances that warranted the extension. These circumstances included the need for additional time to negotiate the agreements due to the complexity of the issues involved and the parties' commitment to continuing negotiations in good faith. The Commission was satisfied that the extension would not adversely affect the parties' ability to reach a fair and reasonable agreement.

The final orders of the Fair Work Commission included an extension of the default period for the two collective agreements as requested by the applicants. This decision provides guidance for similar future applications and underscores the importance of demonstrating exceptional circumstances when seeking an extension of the default period under the Fair Work Act 2009.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established