Somerville Community Services

[2023] FWCFB 310 [Note: A copy of the zombie agreement to which this decision relates (AC320754) 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

Somerville Community Services

(AG2024/806)

SOMMERVILLE COMMUNITY SERVICES INC EMPLOYEE COLLECTIVE AGREEMENT 2008

Health and welfare services
DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT SLEVIN COMMISSIONER CRAWFORD	SYDNEY, 15 JULY 2024

Application to extend the default period for the Somerville Community Services Inc Employee Collective Agreement 2008.

Somerville Community Services Inc (Somerville) has applied, pursuant to item 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act2009 (Cth) (Transitional Act), to extend the default period for the Somerville Community Services Inc Employee Collective Agreement 2008 (Agreement). The Agreement was approved in accordance with s.170LT of the Workplace Relations Act 1996. It is an agreement-based transitional instrument to which item 20A applies.

Somerville lodged an earlier application pursuant to item 20A(4) of Sch 3 to the Transitional Act to extend the default period of the Agreement (the First Application). In a decision issued on 9 November 2023 the Full Bench considered that the requirements in subitem (6)(a) were met and it was appropriate in the circumstances to extend the Agreement. The Full Bench ordered that the default period for the Agreement be extended by 4 months until 6 April 2024 to allow time for the parties to finalise a replacement enterprise agreement.[1]

The current application seeks to extend the Agreement until 30 September 2024. The application was made, in accordance with subitem (6)(a), on the ground 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 United Workers’ Union and the Australian Services Union are both bargaining representatives in the negotiations for a replacement agreement and they both support the extension submitting that the continuation of the Agreement will assist the parties to continue to bargain in good faith towards finalising the replacement agreement. Somerville has provided a chronology of meetings and steps involved in finalising bargaining. The unions indicate that they have been provided with a final draft of the proposed agreement and expect that a vote of employees seeking their approval will occur in the near future.

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. We note that the parties are close to finalising a replacement agreement and propose to grant the extension as sought.

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 30 September 2024.

The Agreement is published, in accordance with subitem 20A(10A)(c), on the Fair Work Commission’s website.

DEPUTY PRESIDENT

[1] [2023] FWCFB 208.

Printed by authority of the Commonwealth Government Printer

Somerville Community Services Inc applied to the Fair Work Commission to extend the default period of the Somerville Community Services Inc Employee Collective Agreement 2008. The Agreement was approved under the Workplace Relations Act 1996 and is subject to transitional provisions in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The Commission previously extended the Agreement's default period until April 6, 2024, and this application seeks an extension until September 30, 2024, to allow time for negotiations of a replacement agreement.

The legal issues before the Commission were whether the requirements of subitem 20A(6)(a) of the Transitional Act were met and whether it was appropriate to extend the default period. Subitem 20A(6)(a) requires that bargaining is occurring for a proposed enterprise agreement that covers the same or substantially the same group of employees as the existing agreement and that it is appropriate to extend the default period. The unions supporting the extension submitted that the continuation of the Agreement would assist in finalising a replacement agreement. Somerville provided evidence of ongoing bargaining and the unions indicated that a final draft of the proposed agreement had been provided and a vote of employees would occur soon.

The Commission found that the requirements of subitem 20A(6)(a) were met, as the evidence showed that bargaining for a replacement agreement was occurring and that extending the default period was appropriate to allow the parties to finalise the agreement. The Commission was satisfied that the parties were close to finalising the replacement agreement and decided to grant the extension as sought.

The Fair Work Commission ordered that the default period for the Agreement is extended until September 30, 2024, and that the Agreement be published on the Commission’s website.

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