Gellibrand Support Services Inc

[2024] FWCFB 210

[2024] FWCFB 210 Note: A copy of the zombie agreement to which this decision relates (AE875022) is available on our website.]

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 7, Item 30(4) - Application to extend default period for enterprise agreements made during the bridging period

Gellibrand Support Services Inc

(AG2023/4804)

GELLIBRAND SUPPORT SERVICES AGREEMENT 2009

Health and welfare services
DEPUTY PRESIDENT SLEVIN DEPUTY PRESIDENT GRAYSON COMMISSIONER THORNTON	SYDNEY, 12 APRIL 2024

Application to extend the default period for the Gellibrand Support Services Agreement 2009

1. Pursuant to subitem 30(4) of Sch 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)(Transitional Act), Gellibrand Support Services Inc has applied to extend the default period for the Gellibrand Support Services Agreement 2009 (the Agreement).

1. The Agreement was made during the ‘bridging period’ as defined Schedule 1 of the Transitional Act and approved under the Fair Work Act 2009 (Cth) (FW Act) on 23 March 2010.[1] Agreements made in the bridging period are a form of agreement that is referred to as a zombie agreement.

1. The Agreement applies to the Applicant and 203 of its employees that work as team members providing care to people with a disability in the western and northern regions of Melbourne and Ballarat, as well as managers engaged in supervising team members.

1. The Agreement was to terminate at the end of the default period on 6 December 2023 in accordance with subitems 30(1) and 30(2) of Schedule 7 to the Transitional Act unless an application was made under subitem 30(4) for that time to be extended. An application was made which initially sought to extend the default period to 5 December 2024.

1. The main aspects of the statutory framework for applications for the extension of zombie agreements are detailed in the Full Bench decision in Suncoast Scaffold Pty Ltd (Suncoast Scaffold).[2] The Full Bench in that case dealt with an application to extend a ‘WR Act agreement’ under item 20A of Schedule 3 to the Transitional Act. The terms of item 20A of Schedule 3 are relevantly the same as item 30 of Schedule 7. The Full Bench’s analysis of those provisions apply equally to item 30 of Schedule 7.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (SJBP Act) amended the Transitional Act to include item 30 in Schedule 7. Subitem 30(6) provides that where an application is made under subitem 30(4) for the period to be extended, the Commission must extend the default period for a period of no more than four years if either:

“ (a) subitem (7) or (8) applies and it is otherwise appropriate in the circumstances to do so; or

(b) it is reasonable in the circumstances to do so.”

1. The applicant seeks the extension on the basis that it has commenced bargaining and wants the opportunity to negotiate pay and conditions with their employees, which would ensure employees are better off overall than they would otherwise be under the Home Care classification and associated benefits of the Social, Community, Home Care and Disability Services Industry Award 2010.

1. The present application is made on the basis that subitem (7) applies. Subitem (7) applies if the application is made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same group of employees as the zombie agreement, and bargaining for the proposed agreement is occurring.

1. The Applicant advised the Commission that they issued a Notice of Employee Representational Rights (NERR) to employees on 29 November 2023, notifying of its intention to negotiate a new agreement. A copy of the NERR was provided to the Commission.

1. This application was made on 4 December 2023.

1. The Applicant proposes that the new agreement cover team members, but remove from coverage 8 management roles that provide direct supervision and management of team members.

1. The Applicant provided to the Commission a detailed timeline of the steps taken in bargaining. The Health Services Union Victoria No. 1 Branch, trading as the Health Workers Union (HWU), are a default bargaining representative. 20 other employees have been appointed as employee bargaining representatives. Between 5 October and 11 December 2023, 6 bargaining meetings took place, some between the union and the Applicant, and others with the employee bargaining representatives and the Applicant. On 11 December 2023 a bargaining meeting took place with both the union and employee bargaining representatives with further planned for 2024.

Consideration

1. The Full Bench in ISS Health Services Pty Ltd[3] described the three requirements of subitem (7) that must apply for an extension to the default period to be granted. 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 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 third is that bargaining for the proposed agreement must be occurring.

1. The application was made after the notification time for the proposed agreement. The proposed agreement will cover substantially the same group of employees as the zombie agreement as it covers 195 Team Members, a vast portion of the Applicant’s workforce, and only seeks to exclude 8 management roles from coverage. It is clear that bargaining has commenced.

1. On 18 December 2023, the Applicant applied to amend its application and seek a reduction in the period of an extension of the default period from 12 months to 6 months. The HWU, on behalf of its members, consented to an extension of the default period by 6 months.

1. Both parties indicated their confidence that a replacement agreement can be finalised and approved in that timeframe. We share their confidence. Significant progress appeared to have been made in the bargaining even by the end of 2023.

1. Considering the above, we are of the view that an extension until 6 June 2024 is sufficient time for a replacement agreement to be made and approved.

1. Pursuant to item 30(4) of Schedule 7 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.

1. The Agreement is published, in accordance with subitem 30(9A)(c) of the Act, on the Fair Work Commission website.

DEPUTY PRESIDENT

[1] [2010] FWAA 2393.

[2] [2023] FWCFB 105 at [3]-[18].

[3] [2023] FWCFB 122 at [4].

Printed by authority of the Commonwealth Government Printer

<AE875022  773483>