Seventh-day Adventist Church (SPD) Ltd T/A Seventh-day Adventist Church

[2024] FWCFB 217 [Note: A copy of the zombie agreement to which this decision relates (AC311762) 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

Seventh-day Adventist Church (SPD) Ltd T/A Seventh-day Adventist Church

(AG2023/4909)

SEVENTH-DAY ADVENTIST CHURCH (SPD) LTD – WAHROONGA SITE ADMINISTRATIVE SUPPORT EMPLOYEES COLLECTIVE AGREEMENT
Clerical industry
DEPUTY PRESIDENT ROBERTS DEPUTY PRESIDENT SLEVIN COMMISSIONER ALLISON	SYDNEY, 22 APRIL 2024

Application to extend the default period for the Seventh-day Adventist Church (SPD) Ltd – Wahroonga Site Administrative Support Employees Collective Agreement

Introduction

Seventh-day Adventist Church (SPD) Ltd T/A Seventh-day Adventist Church has applied pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) to extend the Seventh-day Adventist Church (SPD) Ltd – Wahroonga Site Administrative Support Employees Collective 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 under subitem (6)(a) 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 1 July 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 1 July 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

Seventh-day Adventist Church (SPD) Ltd T/A Seventh-day Adventist Church applied to the Fair Work Commission for an extension of the default period for their existing collective agreement, which was due to expire. The applicant sought this extension under subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) on the basis that bargaining was occurring for a proposed enterprise agreement that would cover the same, or substantially the same, group of employees as the existing agreement. This application was made after the notification period for the proposed enterprise agreement.

The legal issues before the court were whether the requirements for extending the default period under subitem 20A(6)(a) of the Act had been met and if it was appropriate to grant the extension. The Full Bench had previously outlined the requirements for such an application in ISS Health Services Pty Ltd. The court had to determine if the applicant had commenced bargaining for a replacement agreement and if an extension until 1 July 2024 was sufficient time for a replacement agreement to be made and approved.

The court was satisfied that the requirements in subitem 20A(6)(a) had been met based on the material provided. The applicant had indeed commenced bargaining for a replacement agreement. The court also considered that an extension until 1 July 2024 was an appropriate amount of time to allow for the negotiation and approval of a replacement agreement. Consequently, the court ordered that the default period for the existing collective agreement would be extended until 1 July 2024, in line with the applicant’s request. The Agreement was also published on the Fair Work Commission’s website as required by the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established