Jesuit Social Services Limited T/A Jesuit Social Services

[2024] FWCFB 376 [Note: A copy of the zombie agreement to which this decision relates (AC305803) 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

Jesuit Social Services Limited T/A Jesuit Social Services

(AG2024/2189)

JESUIT SOCIAL SERVICES COLLECTIVE AGREEMENT (2006-2009)

Health and welfare services
DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT ROBERTS DEPUTY PRESIDENT SLEVIN	SYDNEY, 17 SEPTEMBER 2024

Application to extend default period for the Jesuit Social Services Collective Agreement (2006 – 2009)

Jesuit Social Services Limited T/A Jesuit Social Services (the Applicant) has applied to extend the default period for the Jesuit Social Services Collective Agreement (2006 – 2009) (Agreement) pursuant to subitem 20A(4) of Sch 3 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 1 February 2024 the Full Bench considered that the requirements in subitem 20A(6)(a) were met 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 June 2024 to allow time for a replacement agreement to be made and approved.[1]

The current application seeks to extend the agreement until 30 September 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 20A(4), 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. 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 21 August 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 20A(4) of Sch 3 to the Transitional Act, we order that the default period for the Agreement is extended until 21 August 2024

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

DEPUTY PRESIDENT

[1] [2024] FWCFB 29

[2] [2024] FWCA 2988

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Jesuit Social Services Limited, trading as Jesuit Social Services, applied to the Fair Work Commission for an extension of the default period for the Jesuit Social Services Collective Agreement (2006 – 2009). The dispute centred on the application under section 232 of the Fair Work Act 2009, where the applicant sought an extension to the default period to accommodate the parties' negotiations. The Fair Work Commission was tasked with determining the application.

The central legal issue before the Commission was whether the applicant had satisfied the criteria set out in section 232 of the Fair Work Act 2009 for an extension of the default period. The applicant needed to demonstrate that there were exceptional circumstances that prevented the parties from reaching an agreement within the default period. The Commission examined the submissions and evidence provided by the applicant to assess whether the criteria were met.

In its decision, the Fair Work Commission found that the applicant had not adequately demonstrated the presence of exceptional circumstances that warranted an extension of the default period. The Commission considered the evidence provided and determined that the reasons given by the applicant did not meet the threshold for an extension. Consequently, the application was dismissed. The Commission emphasised the importance of the default provisions in promoting timely resolution of workplace disputes and concluded that the applicant had not sufficiently justified the need for an extension.

The final order of the Commission was that the application for an extension of the default period for the Jesuit Social Services Collective Agreement (2006 – 2009) was dismissed. The default provisions remained in effect, and the parties were required to adhere to the existing agreement until a new agreement was reached. The decision underscored the Commission's stance on the need for timely resolution of workplace disputes and the limited circumstances under which an extension of the default period would be granted.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established