Young Men’s Christian Association Of Geelong Inc T/A Ymca Geelong (The Y Geelong)

[2024] FWCFB 121

[2024] FWCFB 121

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

Young Men’s Christian Association Of Geelong Inc T/A Ymca Geelong (The Y Geelong)

(AG2023/4010)

YMCA STAFF COLLECTIVE AGREEMENT 2008 - YOUNG MEN'S CHRISTIAN ASSOCIATION OF GEELONG INC

Children's services
DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT ROBERTS      DEPUTY PRESIDENT SLEVIN	SYDNEY, 28 FEBRUARY 2024

Application to extend the default period for YMCA Staff Collective Agreement 2008 – Young Men’s Christian Association of Geelong Inc

1. Pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (TransitionalAct), the Young Men’s Christian Association of Geelong Inc has applied to extend the  default  period  for the  YMCA Staff Collective Agreement 2008 – Young Men’s Christian Association of Geelong Inc (Agreement).

1. 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 (subitem (7)) and that it is otherwise appropriate to do so. In the alternative, the Applicant relies on subitem 20A(6)(b), that is, that it is reasonable in the circumstances to extend the default period. The application is to extend the default period until 30 September 2024.

1. 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. The Bench in that matter was dealing with an application under subitem 26A of Sch 3A of the Transitional Act. The relevant provisions in that subitem are in similar terms to those in subitem 20A of Sch 3 and we adopt the relevant principles from the decision.

1. The requirements for an extension of the default period where bargaining is relied upon are as follows:

1.   The application must have been made at or after the ‘notification time’ for a proposed enterprise agreement.

2.   The proposed enterprise agreement must cover the same, or substantially the same, group of employees as the collective agreement-based transitional instrument.

3.   Bargaining for the proposed enterprise agreement must be occurring.

1. We are satisfied that the application was made at or after the notification time for a proposed agreement and that bargaining is occurring. We are also satisfied on the material provided that the proposed agreement will cover the same or substantially the same group of employees as the collective agreement-based transitional instrument. We note that the notice of employee representational rights that was issued in relation to the proposed agreement shows that the coverage of the proposed agreement will be wider than the Agreement. However, the Applicant has advised that the number of employees covered by the Agreement is the same as the number who are proposed to be covered by the agreement which is the subject of bargaining. Accordingly, the requirements of subitem 20A(7) are satisfied and we turn to consider whether it is otherwise appropriate to extend the default period under subitem 20A(6)(a).

1. The Applicant advised that the terms of the Agreement contain identical terms and conditions to at least two other YMCA agreements which are not zombie agreements. Those two agreements continue to operate and will not sunset by operation of the Transitional Act. The Applicant is currently engaged in bargaining for a single enterprise agreement alongside two other YMCA Associations (Ballarat and Whittlesea). Bargaining for the Applicant’s proposed agreement is well advanced. The Applicant said it would be unreasonable for its employees to be treated differently to those covered by identical provisions by having the Applicant’s employees revert to the modern awards for the relatively brief period that it will take to finalise an agreement. The Applicant pointed to the administrative costs of such a change. The Applicant advised that its expectation was that a new agreement could be finalised and an application for approval could be made in early 2024.

1. We accept the Applicant’s submissions and consider that it is otherwise appropriate to extend the default period in the present circumstances. We note that bargaining is well-advanced. Employee bargaining representatives have been notified of the application and are supportive of an extension. Having regard to the Applicant’s submission that there were at least some terms of the Agreement that are less beneficial than the underpinning awards, we do not consider it appropriate to extend the Agreement until 30 September 2024. We are of the view that an extension until 30 June 2024 will provide enough time for the proposed agreement to be finalised and approved.

1. 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 June 2024.

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

DEPUTY PRESIDENT

[1] [2023] FWCFB 122.

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