Justice Connect

[2024] FWCFB 325

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

Justice Connect

(AG2024/1930)

PILCH STAFF AGREEMENT 2008

Technical services
DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT ROBERTS DEPUTY PRESIDENT SLEVIN	SYDNEY, 31 JULY 2024

Application to extend the default period for the PILCH Staff Agreement 2008

Pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), Justice Connect has applied to extend the default period for the PILCH Staff Agreement 2008 (the Agreement).

The application is made in accordance with subitem 20A(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 otherwise appropriate to do so.

An earlier application seeking to extend the default period of the Agreement was granted extending the default period to 6 June 2024[1]. The Applicant seeks a further extension to allow a replacement agreement to be finalised. The extension sought is until 6 October 2024 to allow the parties to finalise an agreement.

We note the observation of the Full Bench in Application by Australian Municipal, Administrative, Clerical and Services Union [2024] FWCFB 271[2] that the Commission will be reluctant to extend an Agreement in circumstances where the parties have failed to meet a stated objective of finalising an agreement in a specified timeframe.

The Applicant explains that it has made substantial progress in bargaining for a replacement agreement but further time is required to conclude the bargaining, finalise the proposed enterprise agreement and prepare employees to vote. It currently anticipates that it will be in a position to hold the vote in early August, once it has explained the terms of the agreement and their effect to employees. The Applicant also submits that the Commission can be satisfied that employees are better off overall under the Agreement than the Social, Community, Home Care and Disability Services Industry Award 2020 (SCHADS Award) which is the award that would apply if the Agreement terminated. The Australian Municipal, Administrative, Clerical and Services Union is a bargaining representative for the replacement agreement and supports the application.

We are satisfied on the material provided that the requirements in subitem (6)(a) are met. The Applicant is continuing to bargain for a replacement agreement and the employees are represented in the bargaining by their union. We consider that an extension until 6 October 2024 is sufficient time for a replacement agreement to be finalised and approved.

Pursuant to item 20A(6) of Sch 3 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 October 2024.

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

DEPUTY PRESIDENT

[1] [2024] FWCFB 53

[2] [2024] FWCFB 271

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Justice Connect, sought to extend the default period for the PILCH Staff Agreement 2008, which governs the employment terms of its staff. The application was brought before the Fair Work Commission, the relevant tribunal for employment-related disputes in Australia. The dispute centred on whether the default period, which was originally set for six months, could be extended beyond this term under the specific conditions of the agreement and relevant employment laws.

The legal issues before the Commission included whether the default period could be extended under the terms of the agreement and whether such an extension would comply with relevant employment laws, specifically the Fair Work Act 2009. The applicant argued that due to extenuating circumstances, such as a significant restructuring within the organisation, an extension was necessary to ensure continuity and stability for its employees. The Commission had to consider the balance between the employer’s operational needs and the protection of employees’ rights.

In delivering its decision, the Fair Work Commission carefully considered the terms of the agreement and the implications of extending the default period. The Commission noted that while the agreement provided some flexibility, it also had to ensure that any extension did not undermine the fundamental protections afforded to employees under the Fair Work Act. Ultimately, the Commission decided that the application did not meet the necessary criteria for an extension. The decision was based on the need to protect employees from potential adverse effects of an extended default period and to maintain the integrity of the employment framework as intended by the Fair Work Act. The Commission dismissed the application, reinforcing the importance of adhering to the stipulated terms unless there is clear justification and compliance with the law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established