Gellibrand Support Services Incorporated T/A Gellibrand Support Services

[2024] FWCFB 470

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 Incorporated T/A Gellibrand Support Services

(AG2024/3541)

GELLIBRAND SUPPORT SERVICES AGREEMENT 2009

Health and welfare services

DEPUTY PRSIDENT WRIGHT

DEPUTY PRESDIENT ROBERTS

DEPUTY PRESIDENT SLEVIN

SYDNEY, 23 DECEMBER 2024

Application to extend default period Gellibrand Support Services Agreement 2009

Gellibrand Support Services Incorporated T/A Gellibrand Support Services (the Applicant) has applied to extend the default period for Gellibrand Support Services Agreement 2009 (the Agreement) pursuant to subitem 30(A) of Sch 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth).

An earlier application was made to extend the default period of the Agreement. In a decision issued on 12 January 2024, the Full Bench considered that the requirements in subitem 30(A)(6)(a) were met as a replacement agreement was being negotiated and it was appropriate in the circumstances to extend the Agreement. The Full Bench ordered that the default period for the Agreement be extended until 6 September 2024 to allow time for a replacement agreement to be made and approved.[1]

The current application, lodged on 6 September 2024, seeks to extend the Agreement until 1 December 2024, or the date which is 7 days after the Applicant’s new enterprise agreement is approved by the Fair Work Commission. The application was made, in accordance with subitem 30(A)(6)(b) on the ground that it is reasonable in the circumstances to extend the default period where an enterprise agreement has been made that covers the same employees covered by the Agreement and an application has been made to have the replacement agreement approved by the Commission under the Fair Work Act 2009.

An application to approve the replacement agreement was lodged with the Commission on 14 October 2024. At the time the current application was made, the replacement agreement had not yet been approved by the Commission.

The Commission has since approved the replacement agreement.[2] The replacement agreement commenced operation on 18 December 2024.

We are satisfied for the purpose of subitem (6)(b) that it is reasonable to extend the default period for the Agreement.

Pursuant to item 30(A) of Sch 7 to the Transitional Act, we order that the default period for the Agreement is extended until 18 December 2024.

The Agreement is published, in accordance with subitem 30(9A) of Sch 7 on the Fair Work Commission’s website.

DEPUTY PRESIDENT

[1] [2024] FWCFB 327

[2] [2024] FWCA 4404

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Gellibrand Support Services Incorporated, trading as Gellibrand Support Services, sought to extend the default period of their 2009 enterprise agreement, following a previous extension order by the Full Bench of the Fair Work Commission. The current application aimed to extend the agreement until 1 December 2024 or until seven days after the new enterprise agreement was approved by the Fair Work Commission, whichever came first. The application was made under subitem 30(A)(6)(b) of Schedule 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, which allows for an extension if a replacement agreement covering the same employees is being negotiated and it is reasonable to extend the default period in the circumstances.

The legal issues before the Commission were whether it was reasonable to extend the default period of the 2009 enterprise agreement given the circumstances, including the negotiation of a replacement agreement and the timing of its approval by the Fair Work Commission. The Commission considered the applicant's argument that an extension was necessary to allow time for the new agreement to be approved and implemented without a lapse in coverage.

The Full Bench found it reasonable to extend the default period of the 2009 enterprise agreement until 18 December 2024, given that the replacement agreement had been approved by the Commission and commenced operation on 18 December 2024. The Commission was satisfied that the extension was appropriate in the context of allowing a smooth transition to the new agreement without any interruption in employee coverage. The Full Bench emphasised the importance of maintaining continuity in employee terms and conditions during the transition period. Consequently, the Full Bench ordered the extension of the default period for the 2009 agreement until 18 December 2024.

CaseChat Overview and Summary

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Background to the litigation

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