Kiama Community College Ltd

[2024] FWCFB 194

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 3, Item 20A(4) - Application to extend default period for enterprise agreements

Kiama Community College Ltd

(AG2023/4218)

Educational services
DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT SLEVIN DEPUTY PRESIDENT GRAYSON	SYDNEY, 28 MARCH 2024

Application to extend the default period for the Kiama Community College Collective Agreement 2009 - 2014

Kiama Community College has applied to extend the default period for the Kiama Community College Collective Agreement 2009-2014 (the Agreement) pursuant to subitem 30(4) of Sch 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Act).

The Agreement was made in 2009 and approved under the Workplace Relations Act 1996 (Cth) (WR Act) and is a ‘WR Act Instrument’ within the meaning of item 2(2) of Sch. 3 to the Transitional Act. We have therefore taken the application to have been made under subitem 20A(4) of Sch 3.

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 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 Applicant has commenced bargaining for a replacement agreement and we consider that an extension until 6 August 2024 is sufficient time for a replacement agreement to be made and approved.

Pursuant to item 20A(6) of Sch 3 to the Transitional Act, we order that the default period for the Agreement is extended until 6 August 2024.

The Agreement is published, in accordance with subitem 20A(10A)(c), 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

Kiama Community College Ltd applied to the Fair Work Commission for an extension to the default period for the Kiama Community College Collective Agreement 2009-2014. The application was made under subitem 20A(4) of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The application was made on the ground that bargaining was occurring for a proposed enterprise agreement that would cover the same, or substantially the same, group of employees as are covered by the Agreement. The application was made after the notification time for the proposed enterprise agreement.

The legal issues before the Full Bench were whether the requirements for extending the default period were met, and if so, how long the extension should be. The Full Bench considered the requirements set out in subitem 20A(6)(a) of Schedule 3 to the Transitional Act, and noted the case of ISS Health Services Pty Ltd. The Full Bench found that the requirements for extending the default period were met. The Full Bench considered that an extension until 6 August 2024 would provide sufficient time for a replacement agreement to be made and approved.

The Full Bench ordered that the default period for the Agreement be extended until 6 August 2024. The Agreement was published on the Fair Work Commission’s website, in accordance with subitem 20A(10A)(c) of Schedule 3 to the Transitional Act. The Full Bench did not make any further orders.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established