Health Services Union

[2024] FWCFB 423

[2024] FWCFB 423[Note: A copy of the zombie agreement to which this decision relates (AC312394) (AC315302) 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

Health Services Union

(AG2024/3921)

MELBOURNE CITYMISSION RWSIDENTIAL/AUPPORT SERVICES AGREEMENT 2007

ABLE AUSTRALIA COLLECTIVE AGREEMENT

Health and welfare services industry
DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT ROBERTS DEPUTY PRESIDENT SLEVIN	SYDNEY, 8 NOVEMBER 2024

Application to extend the default period for the Melbourne Citymission Residential/Support Services Agreement 2007 and the Able Australia Collective Agreement

1. The Health Services Union (the Applicant) has applied pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Act) to extend the default period for two agreements, the Melbourne Citymission Residential/Support Services Agreement 2007 (AC312394) and the Able Australia Collective Agreement (AC315302) (together, the Agreements). The applications are supported by the relevant employer, Able Australia.

1. A previous application was made by Able Australia on 22 September 2023 and we  made orders in a decision published on 23 November 2023 which extended the default periods to 6 December 2024[1] (the first decision).

1. Subitem (2) of item 20A of Sch 3 to the Transitional Act makes it clear that a default period can be extended on one or more occasions. The Applicant seeks a further extension to the default periods of six months such that the Agreements terminate on 6 June 2025.

1. Relevantly, when an application is made under subitem (4) of item 20A, 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. Subitem (7) applies when parties are bargaining for a replacement agreement.

1. Both the previous and present applications have been made on the grounds that subitem (7) applies. Subitem (7) applies when parties are bargaining for a replacement agreement. The parties are currently engaged in bargaining for a proposed enterprise agreement that will cover the same or substantially the same group of employees as are covered by the Agreements. The background to the bargaining for the replacement agreement is set out in the first decision[2].  That background and the material before the Commission in this application establishes that bargaining for a replacement agreement is ongoing. Accordingly, we are satisfied subitem (7) of Item 20A of Sch 3 of the Transitional Act applies.

1. Where subitem (7) applies, the Commission must be satisfied pursuant to subitem 6(a) that it is otherwise appropriate in the circumstances to extent the default period.

1. In the first decision we referred to factors relevant to a consideration of when it will be appropriate to grant an extension under subitem 6(a)[3]. In particular we noted, following the Full Bench decision in ISS Health Pty Ltd[4],  that it is appropriate  to  do  so  where:

   (a)     the parties seek time to negotiate a replacement agreement and are not simply seeking to extend an agreement for the sake of convenience;

   (b)     where there is complexity in the negotiations arising from factors such as the number of employees and work sites to be covered by the replacement agreement; and

   (c)     where the employees would be better off overall while the Zombie agreements were in place.

1. We set out the background relevant to negotiating a replacement agreement in the first decision at [12]. This included that the bargaining process is complicated due to the diverse and fragmented worksites covered by the Agreements, that the employees are casual and temporary making it difficult for bargaining representatives to gain instructions from the employees, and the need to bring employees currently on different terms and conditions under one agreement. The parties also agreed, and we accept, that the employees would be better off under the Agreements than if the award applied.

1. The circumstances described in our first decision still apply. We note that while the negotiations did not commence as soon as anticipated following the first decision, there have been concerted efforts to progress negotiations towards the replacement agreement. The HSU provided a timeline of bargaining and anticipates that a replacement agreement will be finalised by June 2025.

1. On the basis of the material before the Commission, we are satisfied for the purpose of subitem (6)(a) that it is otherwise appropriate to extend the default periods for the Agreements.

1. Accordingly, pursuant to subitem (6) we must extend the default periods.

1. We order that the default periods for the Agreements are extended to 6 June 2025 pursuant to item 20A(4) of Sch 3 to the Transitional Act.

1. The Applicant indicates that there are a number of issues where the parties are still apart but that assistance of the Commission to finalise agreement has not been sought. We note that the Commission is available pursuant to s.240 of the Fair Work Act 2009 to assist the parties in finalising the agreement should it appear that agreement may not be reached in the further extended timeframe. We encourage the parties to take that course should it become necessary. 

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

DEPUTY PRESIDENT

[1] [2023] FWCFB 221

[2] Id at [9]

[3] At [11]

[4] [2023] FWCFB 122

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