The Parkside Foundation Pty Ltd T/A Parkside Foundation

[2024] FWCFB 116

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

(AG2023/4008 and AG2023/4287)

THE PARKSIDE FOUNDATION SUPPORT WORKERS COLLECTIVE AGREEMENT 2009
[AC325305]

THE PARKSIDE FOUNDATION MANAGERS AND COORDINATORS COLLECTIVE AGREEMENT 2009
[AC325181]

Health and welfare services
DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT ROBERTS DEPUTY PRESIDENT SLEVIN	SYDNEY, 28 FEBRUARY 2024

Application to extend the default period for The Parkside 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 period for the The Parkside Support Workers Collective Agreement 2009 and The Parkside Foundation Managers and Coordinators Collective Agreement 2009 (the Agreements).

The application is made in accordance with subitem 20A(6)(a) on the ground that the 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 Agreements 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 relied upon.

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 April 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 April 2024.

The Agreement is published, in accordance with subitem 20A(10A), 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 Parkside Foundation Pty Ltd, trading as the Parkside Foundation, applied to the Fair Work Commission for an extension of the default period for two collective agreements: The Parkside Support Workers Collective Agreement 2009 and The Parkside Foundation Managers and Coordinators Collective Agreement 2009. The application was made under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, seeking to extend the default period to allow for the negotiation of a new enterprise agreement that would replace the existing ones. The applicants argued that such an extension was appropriate because negotiations for the proposed enterprise agreement had commenced and covered the same group of employees as those covered by the existing agreements.

The court had to determine whether the requirements for extending the default period were met and if such an extension was appropriate. The applicants needed to demonstrate that they were bargaining for a proposed enterprise agreement that would cover the same group of employees as the existing agreements and that an extension was necessary. The case law, particularly the Full Bench decision in ISS Health Services Pty Ltd, established the criteria that the application must satisfy. The court needed to consider if the application was made in accordance with the relevant provisions and if the extension would provide sufficient time for the negotiation and approval of the new enterprise agreement.

The Full Bench found that the applicants had satisfied the requirements for extending the default period under subitem 20A(6)(a). They had commenced bargaining for the new enterprise agreement and it was appropriate to extend the default period to allow sufficient time for the negotiation and approval process. The court ordered that the default period for the existing agreements be extended until 6 April 2024. The decision was published on the Fair Work Commission’s website as required by the legislation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established