Health Services Union, Tasmania Branch T/A Health and Community Services Union (HACSU)

[2024] FWCFB 263

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 3A, Item 26A(4) - Application to extend default period for Division 2B State employment agreements

Health Services Union, Tasmania Branch T/A Health and Community Services Union (HACSU)

(AG2023/3791)

Social, community, home care and disability services

DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT ROBERTS DEPUTY PRESIDENT SLEVIN

SYDNEY, 21 MAY 2024

Application to extend the default period for The Warrawee Women’s Shelter Enterprise Agreement 2009

Pursuant to subitem 26A(4) of Sch 3A to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), the Health Services Union (HSU) has applied to extend the default period for The Warrawee Women’s Shelter Enterprise Agreement 2009 (the Agreement).

The application is made in accordance with subitem 26A(6)(a) on the ground that bargaining is occurring for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as are covered by the Agreement and that it is appropriate to do so. The application was made after the notification time for the proposed enterprise agreement.

The Full Bench in ISS Health Services Pty Ltd[1] 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 parties are close to finalising the terms of a replacement agreement. In these circumstances, we consider that an extension until 31 August 2024 is sufficient time for a replacement agreement to be made and approved.

Pursuant to item 26A(6) of Sch 3A to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), we order that the default period for the Agreement is extended until 31 August 2024.

The Agreement is published, in accordance with subitem 26A (10A), on the Fair Work Commission’s website.

DEPUTY PRESIDENT

[1] [2023] FWCFB 122

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Health Services Union (HSU), trading as the Health and Community Services Union, applied to the Fair Work Commission to extend the default period for The Warrawee Women’s Shelter Enterprise Agreement 2009. The application was made under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The Full Bench was required to determine if the application met the criteria for extension as outlined in subitem 26A(6) of Schedule 3A of the Act, and whether it was appropriate to extend the default period.

The key legal issues revolved around whether the application satisfied the conditions set out in subitem 26A(6)(a) of Schedule 3A to the Act, specifically that bargaining for a new enterprise agreement was occurring and that it was appropriate to extend the default period. The Full Bench considered whether the parties were close to finalising the terms of a replacement agreement and if the proposed extension period was reasonable.

The Full Bench was satisfied that the application met the criteria for extension, as the parties were close to finalising a replacement agreement. The Full Bench noted that the application was made after the notification time for the proposed enterprise agreement, but this did not disqualify it. Given that the parties were in the final stages of bargaining, the Full Bench determined that an extension until 31 August 2024 was sufficient. This decision was made to ensure that the replacement agreement could be made and approved within the extended period. The Full Bench also ordered that the Agreement be published on the Fair Work Commission’s website, in accordance with subitem 26A(10A) of Schedule 3A to the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established