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[2025] FWCFB 66
General information, not legal advice.
Fair Work Commission (Full Bench)
2025-03-31
Original judgment source is linked above.
The attached document replaces the document previously issued with the above code on 31 March 2025.
Sch. 3, Item 20A(4) - Application to extend default period for agreement-based transitional instruments
Applications of Australian Education Union and Health Services Union
Applications to extend default period for agreement-based transitional instruments - consent of the parties - reasonable and appropriate - default periods extended
[1] This decision concerns 13 separate applications (together, the Applications) to extend the default periods of various agreement-based transitional instruments pursuant to Schedule 3, Item 20A(4) of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. Four of the applications are made by the Health Services Union (HSU). Eight are made by the Australian Education Union (AEU). One is made jointly by the HSU and AEU.
[2] The Applications, and Agreements to which this decision relates are listed in Schedule 1 to the decision.
[3] Each of the applications are made against the background of another extant application for a supported bargaining authorisation (the SBA proceeding). The decision in the SBA proceeding is presently reserved.
[4] This is the second extension to the default period sought in respect of each Agreement. The Full Bench of the Commission in two separate decisions, Applications by Health Services Union [2024] FWCFB 243 (the HSU decision) and Applications by Australian Education Union [2024] FWCFB 233 (the AEU decision) has previously extended the default periods for each of the Agreements subject to the Applications to 6 December 2024.
[5] Each of the Applications was filed prior to 6 December 2024 and, accordingly have the effect of preserving the operation of the underlying instruments pending resolution of the Applications.
[6] The Full Bench in both the AEU decision and the HSU decision granted extensions on the ground that it was reasonable in the circumstances to do so under subitem 20A 6(b) of Schedule 3 to the Transitional Act.
[7] The grounds in the current applications relied on grounds that went beyond item 6(b) but each included a ground that it would be reasonable in all of the circumstances to extend the default periods while the SBA proceedings remain on foot. Following a Directions hearing conducted by Deputy President Slevin, a consent position emerged by which each of the parties to the SBA proceeding save for one employer[1] consented to an extension of the relevant default period to 6 June 2025.
[8] This decision proceeds on the basis of that consent.
[9] Noting the status of the SBA proceeding, its relevance to the replacement of the instruments, and the consent of the parties we are satisfied that it is reasonable in the circumstances to extend the default periods.
[10] We have, pursuant to subitem 20A(6)(b), decided to extent the default periods for the Agreements in each of the Applications to 6 June 2025. The Agreements are published, in accordance with subitem 20A(10A)(c), on the Fair Work Commission's website and can be accessed through the hyperlinks in Schedule 1 to this decision.
[1] The agreement pertaining to that employer which did not consent is not a subject of this decision.
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