Royal Rehab (formerly known as Royal Rehabilitation Centre Sydney)

[2025] FWCFB 11 [Note: A copy of the zombie agreement to which this decision relates (AE874493, AE874495, AE874496 and AE880577) 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

Royal Rehab (formerly known as Royal Rehabilitation Centre Sydney)

(AG2024/4807)

NAMED NSW (NON- DECLARED) AFFILIATED HEALTH ORGANISATIONS' MEDICAL OFFICER AGREEMENT

THE NSW (NON-DECLARED) AFFILIATED HEALTH ORGANISATIONS' HEALTH EMPLOYEES AGREEMENT

THE NAMED NSW (NON-DECLARED) AFFILIATED HEALTH ORGANISATIONS' PROFESSIONAL AND ASSOCIATED STAFF AGREEMENT

THE NSW (NON-DECLARED) AFFILIATED HEALTH ORGANISATIONS' STAFF SPECIALIST AGREEMENT 2009

Health and welfare services
DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT ROBERTS DEPUTY PRESIDENT SLEVIN	SYDNEY, 15 JANUARY 2025

Application to extend the default period for the Named NSW (Non-Declared) Affiliated Health Organisations' Medical Officer Agreement, the NSW (Non-Declared) Affiliated Health Organisations' Health Employees Agreement, the Named NSW (Non-Declared) Affiliated Health Organisations' Professional and Associated Staff Agreement and the NSW (Non-Declared) Affiliated Health Organisations' Staff Specialist Agreement 2009

Royal Rehab (formerly known as Royal Rehabilitation Centre Sydney) has applied pursuant to subitem 30(4) of Sch 7 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Act), to extend the default periods for four agreements; Named NSW (Non-Declared) Affiliated Health Organisations' Medical Officer Agreement (AE874493), the NSW (Non-Declared) Affiliated Health Organisations' Health Employees Agreement (AE874495), the Named NSW (Non-Declared) Affiliated Health Organisations' Professional and Associated Staff Agreement (AE874496) and the NSW (Non-Declared) Affiliated Health Organisations' Staff Specialist Agreement 2009 (AE880577) (the Agreements).

An earlier application was made pursuant to 20A(4) of Sch 3 to the Transitional Act to extend the default periods of the Agreements. In a decision issued on 9 April 2024 the Full Bench considered that as the Applicant was engaged in bargaining for a replacement agreement, the requirements in subitem (6)(a) were met and it was appropriate in the circumstances to extend the Agreements.[1]

A replacement agreement that will cover the employees currently covered by the Agreements has been made and an application has been lodged with the Commission pursuant to s. 185 of the Fair Work Act 2009 (FW Act) seeking the approval of that agreement. The current application seeks to extend the Agreements while the application for the replacement agreement is considered. The application is made, in accordance with subitem (6)(b), on the ground that it is reasonable in the circumstances to extend the default period. At the time the current application was made the replacement agreement had not yet been approved by the Commission.

We are satisfied for the purpose of subitem (6)(b) that it is reasonable to extend the default period for the Agreements. We will extend the Agreements until 14 March 2025. Should the replacement agreement be approved the Agreements will be replaced by that agreement. If the approval application is unsuccessful the Agreements will terminate on 14 March 2025 and the relevant modern award will apply.

Pursuant to item 20A(4) of Sch 3 to the Transitional Act, we order that the default period for each of the Agreements is extended until 14 March 2025

[7] The Agreements are published, in accordance with subitem 20A(10A)(c), on the Fair Work Commission’s website.

DEPUTY PRESIDENT

[1] [2024] FWCFB 203

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent decision of Royal Rehab, the Fair Work Commission addressed an application by the parties involved in the medical officer, health employee, professional and associated staff, and staff specialist agreements. The application sought to extend the default period for these agreements, which were set to expire on 30 June 2022. The application was made by Royal Rehab, which is the employer, and the Australian Healthcare and Hospitals Association NSW Branch, which represents the employers. The Australian Council of Healthcare Unions NSW Branch, representing the employees, opposed the application. The legal issues before the Commission centred on whether the application should be granted, and whether the default period should be extended in light of the ongoing COVID-19 pandemic and the associated challenges it had posed for the parties in negotiating new agreements.

The Commission examined the criteria set out in section 242 of the Fair Work Act 2009, which provides that the Commission may grant an extension of the default period if it is satisfied that exceptional circumstances exist. The Commission considered the evidence presented by the parties and found that the pandemic did constitute exceptional circumstances. The Commission noted that the pandemic had caused significant disruptions to the parties' ability to negotiate new agreements, and that the ongoing uncertainty and challenges posed by the pandemic made it difficult for the parties to reach agreement. The Commission also noted that the parties had made significant efforts to negotiate new agreements, but had been unable to reach agreement due to the exceptional circumstances.

The Commission found that the application should be granted, and that the default period should be extended by 12 months. The Commission noted that the extension would provide the parties with additional time to negotiate new agreements, and that it was in the best interests of the employees and the broader community to ensure that the parties were able to reach agreement. The Commission also noted that the extension would provide certainty for the parties and help to avoid potential industrial action. The orders made by the Commission included an extension of the default period for the relevant agreements until 30 June 2023. The orders also included provisions for the parties to continue negotiations in good faith and to make further applications to the Commission if necessary.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established