The Parkside Foundation Pty Ltd T/A Parkside Foundation

[2024] FWCFB 284 [Note: A copy of the zombie agreements to which this decision relate (AC325305 and AC325181) 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

The Parkside Foundation Pty Ltd T/A Parkside Foundation

(AG2024/1045 and AG2024/1046)

THE PARKSIDE FOUNDATION SUPPORT WORKERS COLLECTIVE AGREEMENT 2009

THE PARKSIDE FOUNDATION MANAGERS AND COORDINATORS COLLECTIVE AGREEMENT 2009

Health and welfare services
DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT SLEVIN COMMISSIONER CRAWFORD	SYDNEY, 11 JUNE 2024

Application to extend the default periods for The Parkside Foundation Support Workers Collective Agreement 2009 and The Parkside Foundation Managers and Coordinators Collective Agreement 2009

Pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), the Parkside Foundation Pty Ltd T/A Parkside Foundation has applied to extend the default periods for the The Parkside Foundation Support Workers Collective Agreement 2009 (AC325305) and The Parkside Foundation Managers and Coordinators Collective Agreement 2009 (AC325181) (the Agreements).

The Applicant lodged earlier applications in November 2023 pursuant to 20A(4) of Sch 3 to the Transitional Act to extend the default periods of the Agreements. In a decision issued on 28 February 2024 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 until 6 April 2024 to allow time for a replacement agreement to be made and approved.[1]

The current applications lodged on 2 April 2024 seek to extend the Agreements until 6 December 2024. The applications were made, in accordance with subitem (6)(b), on the ground that it is reasonable in the circumstances to extend the default periods in circumstances where an enterprise agreement has been made that covers the same employees covered by the Agreement and an application has been made to have the replacement agreement approved by the Commission under the Fair Work Act 2009. An application to approve the agreement which was proposed to replace both zombie agreements was lodged with the Commission on 8 April 2024. At the time the current applications were made the replacement agreement had not yet been approved by the Commission.

The Commission has since approved the replacement agreement.[2] The replacement agreement commenced operation on 23 May 2024. The purpose of this further extension is to ensure the Agreement continued to apply for the period between the extended date of 6 April 2024 up until the replacement enterprise agreement commenced.

We are satisfied for the purpose of subitem (6)(b) that it is reasonable to extend the default periods for the Agreements.

Pursuant to item 20A(4) of Sch 3 to the Transitional Act, we order that the default periods for the Agreements are extended until 23 May 2024.

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

DEPUTY PRESIDENT

[1] [2024] FWCFB 116.

[2] [2024] FWCA 1798.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Parkside Foundation Pty Ltd T/A Parkside Foundation applied to the Fair Work Commission for an extension of the default periods for two collective agreements: The Parkside Foundation Support Workers Collective Agreement 2009 and The Parkside Foundation Managers and Coordinators Collective Agreement 2009. These agreements were identified as "zombie agreements" due to their outdated status. The application was made under subitem 20A(4) of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, seeking to extend the default periods until 6 December 2024. The purpose of the extension was to provide a transitional period until a new replacement agreement could be approved and implemented. The Commission had previously extended the default periods until 6 April 2024, and this application sought a further extension to ensure continuity until the new agreement commenced on 23 May 2024.

The legal issues before the Commission involved determining whether it was reasonable and appropriate to extend the default periods under the circumstances, particularly given that an application to approve a replacement agreement had been made and was pending. The Commission had to consider the transitional provisions in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, specifically subitem 20A(4), to decide if the criteria for extending the default periods were met. The Commission also had to assess whether the extension would facilitate a smooth transition to the new enterprise agreement without causing undue disruption or hardship to the employees covered by the zombie agreements.

The Commission found it reasonable to extend the default periods for the zombie agreements until 23 May 2024. The decision was based on the fact that the replacement agreement had been made and was pending approval, and the extension would ensure continuity until the new agreement took effect. The Commission concluded that the extension was necessary to avoid a gap in coverage and to allow the new agreement to apply from the intended commencement date. The Commission noted that the replacement agreement had since been approved and commenced on 23 May 2024, fulfilling the purpose of the extension.

The Fair Work Commission ordered that the default periods for The Parkside Foundation Support Workers Collective Agreement 2009 and The Parkside Foundation Managers and Coordinators Collective Agreement 2009 be extended until 23 May 2024. This decision aimed to provide a seamless transition to the new enterprise agreement, ensuring that employees remained covered by a valid agreement during the interim period. The Commission's decision was made in the context of facilitating the approval and implementation of the new agreement, which had already been approved and commenced on the specified date.

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