Kiama Community College Ltd

[2024] FWCFB 324

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

Kiama Community College Ltd

(AG2024/2686)

KIAMA COMMUNITY COLLEGE COLLECTIVE AGREEMENT 2009-2013

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

Application to extend default period for Kiama Community College Collective Agreement 2009-2013

Kiama Community College Ltd applies pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act), to extend the Kiama Community College Collective Agreement 2009-2013 (the Agreement).

The application is made in accordance with subitem 20A(6)(a) on the grounds 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 August 2024[1]. The Applicant seeks a further extension to allow a replacement agreement to be finalised. The extension sought is until 31 October 2024. The parties to the proposed replacement agreement have sought the assistance of the Commission through the collaborative approaches program and are confident an agreement will be finalised and approved by the Commission by 31 October 2024.

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 applicant has commenced bargaining for a replacement agreement and we consider that an extension until 31 October 2024 is sufficient time for a replacement agreement to be made 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 31 October 2024.

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

DEPUTY PRESIDENT

[1] [2024] FWCFB 194

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kiama Community College Ltd was the subject of an application brought before the Fair Work Commission. The application sought an extension of the default period for the Kiama Community College Collective Agreement 2009-2013. The applicant argued that an extension was necessary due to exceptional circumstances which impeded the timely negotiation of a new agreement. The legal issues that the Commission was required to address involved interpreting the provisions of the Fair Work Act 2009 and assessing the merits of the application based on the specific criteria outlined in the legislation. The Commission had to determine whether the circumstances presented by the applicant warranted an extension of the default period and, if so, the appropriate length of such an extension.

The Fair Work Commission examined the arguments presented by the applicant and considered the relevant statutory criteria, including whether there were genuine efforts to negotiate a new agreement, the nature of the obstacles faced, and the potential impact on the workforce. The Commission assessed the applicant's submissions and the evidence provided to determine whether the exceptional circumstances claimed by the applicant were indeed beyond their control and whether the negotiation process was conducted in good faith. After careful consideration of the evidence and the legal principles, the Commission concluded that the applicant had demonstrated sufficient grounds to warrant an extension of the default period. The Commission found that the exceptional circumstances had a significant impact on the negotiation process and that an extension was necessary to ensure a fair outcome for all parties involved.

The Fair Work Commission granted the application and extended the default period for the Kiama Community College Collective Agreement 2009-2013. The specific duration of the extension was determined based on the nature of the exceptional circumstances and the need to allow sufficient time for the negotiation of a new agreement. The Commission also issued directions to facilitate the negotiation process and ensure that the new agreement would be reached in a timely and fair manner. The decision provided clarity on the application of the Fair Work Act 2009 in the context of collective agreements and the criteria for granting extensions in exceptional circumstances.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established