Red Gum House Incorporated T/A Ronald McDonald House Charities Northern NSW

[2024] FWCFB 137 Note: A copy of the zombie agreement to which this decision relates (AE874019) 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 instrument

Red Gum House Incorporated T/A Ronald McDonald House Charities Northern NSW

(AG2023/4427)

RONALD MCDONALD HOUSE IN THE HUNTER AND RONALD MCDONALD HOUSE TAMWORTH ENTERPRISE AGREEMENT

Health and welfare services
DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT SLEVIN DEPUTY PRESIDENT GRAYSON	SYDNEY, 13 MARCH 2024

Application to extend the default period for the Ronald McDonald House in the Hunter and Ronald McDonald House Tamworth Enterprise Agreement

Red Gum House Incorporated T/A Ronald McDonald House Charities Northern NSW applies pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), to extend the default period for the Ronald McDonald House in the Hunter and Ronald McDonald House Tamworth Enterprise Agreement (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 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 June 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 6 June 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

Red Gum House Incorporated T/A Ronald McDonald House Charities Northern NSW applied to the Fair Work Commission to extend the default period for the Ronald McDonald House in the Hunter and Ronald McDonald House Tamworth Enterprise Agreement. This agreement is part of a series of enterprise agreements that need to be renewed periodically to ensure they remain relevant and fair to the employees they cover. The application was made under specific provisions of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, which allows for the extension of the default period when bargaining for a new agreement is in progress. The application was filed after the standard notification period, and the Commission needed to determine if the criteria for such an extension were met.

The primary legal issue before the Commission was whether the requirements set out in subitem 20A(6)(a) of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 were satisfied. This involves establishing that bargaining for a new agreement is occurring and that it is appropriate to extend the default period. The Commission referred to a previous decision in ISS Health Services Pty Ltd to understand the necessary criteria and standards for such applications. The applicant argued that it was in the process of negotiating a new agreement covering the same group of employees, thus fulfilling the conditions for an extension. The Commission had to assess the sufficiency of the evidence provided and decide if extending the default period until 6 June 2024 was appropriate.

The Commission found that the applicant had met the requirements for extending the default period. It was evident that negotiations for a replacement agreement were actively taking place, and the extension would provide sufficient time for the new agreement to be negotiated, agreed upon, and approved. The Commission concluded that the extension was appropriate under the circumstances and ordered that the default period for the Ronald McDonald House in the Hunter and Ronald McDonald House Tamworth Enterprise Agreement be extended until 6 June 2024. The decision was published on the Fair Work Commission's website, ensuring transparency and accessibility for all relevant parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established