Royal Rehab (formerly known as Royal Rehabilitation Centre Sydney)

[2024] FWCFB 203

[2024] FWCFB 203

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

Royal Rehab (formerly known as Royal Rehabilitation Centre Sydney)

(AG2023/4638)

St Vincent’s Hospital Sydney Limited

(AG2023/4691)

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

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

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

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

Health and welfare services

DEPUTY PRESIDENT WRIGHT

DEPUTY PRESIDENT SLEVIN
DEPUTY PRESIDENT GRAYSON

SYDNEY, 9 APRIL 2024

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

Health and welfare services

1. Pursuant to subitem 30(4) of Sch 7 to the Fair  Work  (Transitional  Provisions  and Consequential  Amendments)  Act  2009 (Cth) (the Transitional Act), Royal Rehab (formerly known as Royal Rehabilitation Centre Sydney) has applied to extend the default periods for the 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) to 6 December 2024 (collectively, the Agreements). St Vincent’s Hospital Sydney Limited has applied to extend only the Named NSW (Non- Declared) Affiliated Health Organisations' Medical Officer Agreement to 30 June 2024. We consider both applications in this decision.

1. The applications are made in accordance with subitem 30(6)(a) on the ground that the bargaining is occurring for proposed enterprise agreements that will cover the same, or substantially the same, group of employees as are covered by the Agreements and that it is appropriate to do so. The applications were made after the notification time for the proposed enterprise agreements.

1. 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.

1. 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 periods.

1. As the Full Bench observed in Suncoast Scaffolding Pty Ltd[2] the Commission has a discretion as to the length of the extension, subject to the limitation that the extension cannot be more than four years. The nature of the discretion is such that we are not bound to grant the period of extension sought in the application.[3]

1. In ISS Health Services Pty Ltd the Full Bench ordered an extension of 12 months in circumstances where bargaining for a replacement agreement was occurring. The Full Bench considered this sufficient time for a replacement agreement to be finalised in circumstances where there was some complexity in the bargaining including that the existing agreement covered a number of different sites, a diverse range of classifications and pay rates were linked to a South Australian public sector industrial instrument, and that a previous attempt at bargaining lasted for an extended period and did not succeed.

1. The Applicants in these matters are both affiliated health organisations pursuant to Schedule 3 of the Health Services Act 1997 (NSW) in relation to the public health services that they provide. Although they are both national system employers, they are required by a determination made by the NSW Minister for Health under s. 127(4) of the Health Services Act 1997 (NSW) to provide the same pay and conditions as members of the NSW Health Service to the extent permitted by law.

1. The effect of the Fair Work Act 2009 (FW Act) and the Determination is that the Applicants:

(a) have obligations under the FW Act to comply with the Agreement and the National Employment Standards; and

(b)   have a separate obligation to ‘match’ the NSW Health State Awards-based remuneration, benefits and conditions for employees.

1. The Applicants state that the terms of the Agreements were drafted to align with the respective terms and conditions of the relevant State Award that would apply to employees undertaking the same work for NSW Health, save for additional written undertakings provided by the employers to the Fair Work Commission. The Applicants submit that the negotiation of replacement agreements will therefore be very complex.

1. The Applicants submit that there would be a detrimental impact on operations if the default periods of the Agreements are not extended as employees covered by the Agreements will transition either to the Health Professionals and Support Services Award 2020 and Medical Practitioners Award 2020, which are the applicable Modern Awards. The terms and conditions in the Modern Awards do not align directly with the State awards, which would create confusion, uncertainty and potential conflicts between the Applicants’ obligations under the Determination and FW Act.

1. The Applicants also submit that the employees covered by the Agreements are paid rates of pay that align with an applicable State award, industrial instrument or determination of the Secretary.  These rates are above the minimum rates of pay in the relevant Modern Awards.  Therefore, the employees will not be subjected to a financial detriment, or be worse off, by those arrangements continuing while replacement agreements are negotiated.

1. Bargaining for an agreement to replace the Named NSW (Non- Declared) Affiliated Health Organisations' Medical Officer Agreement commenced in May 2023. We note that St Vincent’s Hospital Sydney Limited is seeking an extension of the default period for that agreement until 30 June 2024 whereas Royal Rehab is seeking an extension until 6 December 2024. Bargaining for replacement agreements in respect of the other three Agreements commenced in November 2023. Royal Rehab is the only employer who these three Agreements continue to apply to and seeks and seeks an extension of the default periods for those agreements until 6 December 2024.

1. We accept the Applicants’ submissions that there is significant complexity in negotiating replacement agreements and that the employees covered by the Agreements will not be disadvantaged by extending the default periods. For this reason we are prepared to extend the default periods of all four Agreements to 6 December 2024 as sought by Royal Rehab.

1. Pursuant to item 30(6) of Sch 7 to the Transitional Act, we order that the default period for the Agreements is extended until 6 December 2024. 

1. The Agreements are published, in accordance with subitem 30(9A), on the Fair Work Commission’s website.

DEPUTY PRESIDENT

[1] [2023] FWCFB 122.

[2] [2023] FWCFB 105 at [18].

[3] See Suncaost Scaffolding Pty Ltd [2023] FWCFB 105 at [18] and Applications by APESMA [2023] FWCFB 137 at [31].

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