Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 3, Item 20A(4) - Application to extend default period for agreement-based transitional instruments

PLENTY VALLEY COMMUNITY HEALTH DISABILITY SERVICES VICTORIA (PART 1) COLLECTIVE AGREEMENT 2008

PLENTY VALLEY COMMUNITY HEALTH INC AND HSU DISABILITY SERVICES UNION COLLECTIVE AGREEMENT 2006-2009

Application to extend the default period for Plenty Valley Community Health Disability Services Victoria (Part 1) Collective Agreement 2008 and Plenty Valley Community Health Inc and HSU Disability Services Union Collective Agreement 2006-2009

[1] Pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), DPV Health Ltd (the Applicant) has applied to extend the default periods for the Plenty Valley Community Health Disability Services Victoria (Part 1) Collective Agreement 2008 and the Plenty Valley Community Health Inc and HSU Disability Services Union Collective Agreement 2006-2009 (the Agreements).

[2] The applications are made in accordance with subitem (6)(a) on the grounds 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 Agreements and that it is appropriate to do so. The Heath Services Union (HSU) and the Australian Education Union (AEU), who are employee bargaining representatives for the proposed Agreements, consent to the extension sought in the applications.

[3] The Applicant seeks an extension to 1 July 2025 for the Agreements for a number of reasons. At the time that the applications were made in November 2023, the Applicant was waiting for the outcomes of the Independent Review of the National Disability Insurance Scheme (the NDIS Review). The Applicant says that it may need to factor in the 222 recommendations of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the Royal Commission recommendations) as part of bargaining. The Applicant is working collaboratively with the HSU and the AEU and staff who work at multiple sites and who are engaged in 24/7 rosters. The Applicant has been applying the ERO for this group of staff to ensure it is applying suitable wage increases.

[4] 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 made. Although that case involved a Division 2B State employment agreement to which Sch 3A of the Act applies, the principles are identical to those applying to agreements to which Sch 3 applies. The requirements are as follows:

1. The application was made after the notification time for the proposed enterprise agreement;

2. The proposed enterprise agreement covers the same employees as the Agreement; and

3. Bargaining for the proposed enterprise agreement is occurring.

[5] The Applicant has provided material to the Commission which establishes that a notice of employee representational rights was issued to all staff on 31 October 2023, that the first bargaining meeting occurred on 17 November 2023 and that bargaining meetings have occurred on a monthly basis since then. The applications to extend the Agreements were made on 17 November 2023.

[6] 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. As the Full Bench observed in Suncoast Scaffolding Pty Ltd[2] the Commission has a discretion as to the length of the extension, subject to the limitation that the extension cannot be more than four years. The nature of the discretion is such that we are not bound to grant the period of extension sought in the application.[3]

[7] In ISS Health Services Pty Ltd the Full Bench ordered an extension of 12 months in circumstances where bargaining for a replacement agreement was occurring. The Full Bench considered this sufficient time for a replacement agreement to be finalised in circumstances where there was some complexity in the bargaining including that the existing agreement covered a number of different sites and a diverse range of classifications, pay rates were linked to a South Australian public sector industrial instrument, and that a previous attempt at bargaining lasted for an extended period and did not succeed.

[8] We note that these or similar circumstances do not arise in the current application before us and that the subject matter of the bargaining is not as complex as other matters that have been before the Commission where an extension longer than 12 months has been granted.[4]

[9] In the current applications, the Applicant has emphasised the role that the outcomes of the NDIS Review and the Royal Commission recommendations may have in bargaining. The Full Bench considered these matters in Application to extend the default period for the Kirinari Community Services Limited Hume Riverina Branch - Certified Agreement 2006-2008 (Kirinari).[5] At the time of determining the application in Kirinari, the NDIS Review and the Royal Commission recommendations had not yet been issued so it was not known what impact they might have on bargaining. Since that time, the Royal Commission recommendations were issued on 28 September 2023 and the NDIS Review was published on 27 October 2023. The parties involved in bargaining for a new agreement to replace the Agreements have therefore had five months to consider the implications of these matters and to incorporate them into their respective claims so there is no basis to extend the Agreements for a longer period than is reasonably necessary to finalise negotiations.

[10] In all the circumstances, we believe that extending the Agreements for a 7 month period should allow sufficient time for the parties to finalise a replacement enterprise agreement, taking into account the time required between voting and the agreement being approved by the Commission.

[11] Pursuant to item 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), we order that the default periods for the Agreements are extended until 6 July 2024.

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

[1] [2023] FWCFB 122.

[2] [2023] FWCFB 105 at [18].

[3] See Suncaost Scaffolding Pty Ltd [2023] FWCFB 105 at [18] and Applications by APESMA [2023] FWCFB 137 at [31] .

[4] See ISS Health Services Pty Ltd [2023] FWCFB 105; Annecto Inc [2023] FWCFB 169; Cancer Council of Victoria [2023] FWCFB199; Endevour Foundation [2023] FWCFB 197.

[5] [2023] FWCFB 158 at [36].

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