Seventh-Day Adventist Schools (South Queensland) Limited

[2024] FWCFB 160

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 Schools (South Queensland) Limited

(AG2023/4843)

SEVENTH-DAY ADVENTIST SCHOOLS (SOUTH QUEENSLAND) LTD TEACHERS COLLECTIVE AGREEMENT 2008-2011

Educational Services
DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT ROBERTS DEPUTY PRESIDENT SLEVIN	SYDNEY, 18 MARCH 2024

Application to extend the default period for the Seventh-Day Adventist Schools (South Queensland) Ltd Teachers Collective Agreement 2008-2011

The Seventh-Day Adventist Schools (South Queensland) Limited 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 Seventh-Day Adventist Schools (South Queensland) Ltd Teachers Collective Agreement 2008-2011 (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

The parties to this application were Seventh-Day Adventist Schools (South Queensland) Limited and the Australian Education Union (AEU). The application was heard by the Fair Work Commission (FWC) seeking an extension of the default period for the Seventh-Day Adventist Schools (South Queensland) Ltd Teachers Collective Agreement 2008-2011. The FWC was required to determine whether the application should be granted, and if so, for what period.

The legal issue before the FWC was whether there were exceptional circumstances which justified the extension of the default period beyond the default period of 3 years. The applicant argued that the exceptional circumstances of the case warranted an extension, while the respondent argued against it. The FWC considered the factors set out in the Fair Work Act 2009 (Cth), including the nature and extent of the exceptional circumstances, the impact of the extension on the interests of the employees and employers, and whether the extension was necessary to achieve a fair and effective resolution of the dispute.

The FWC found that the exceptional circumstances of the case warranted an extension of the default period beyond the default period of 3 years. The FWC took into account the fact that the applicant and the AEU had been engaged in negotiations for an extended period of time, and that there were significant issues that needed to be resolved in order to achieve a fair and effective resolution of the dispute. The FWC also considered the impact of the extension on the interests of the employees and employers, and found that the extension was necessary to achieve a fair and effective resolution of the dispute. The FWC granted an extension of the default period for a period of 12 months.

The FWC made an order extending the default period for the Seventh-Day Adventist Schools (South Queensland) Ltd Teachers Collective Agreement 2008-2011 for a period of 12 months. The order was made on the basis that the exceptional circumstances of the case warranted an extension, and that the extension was necessary to achieve a fair and effective resolution of the dispute. The FWC also noted that the extension was for a limited period of time, and that both parties were required to continue negotiations in good faith during the extended period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established