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[11]
[2025] FWCFB 251
General information, not legal advice.
Fair Work Commission (Full Bench)
2025-11-07
Original judgment source is linked above.
Sch. 3, Item 20A(4) - Application to extend default period for agreement-based transitional instruments
MELBOURNE CITYMISSION RESIDENTIAL/SUPPORT SERVICES AGREEMENT 2007
Application to extend the default period for the Melbourne Citymission Residential/Support Services Agreement 2007 and the Able Australia Collective Agreement
[1] The Health Services Union (the Applicant) has applied pursuant to subitem 20A(4) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Act) to extend the default period for two agreements, the Melbourne Citymission Residential/Support Services Agreement 2007 (AC312394) and the Able Australia Collective Agreement (AC315302) (together, the Agreements).
[2] The applications are supported by the relevant employer, Able Australia.
[3] This is the fourth such application in respect of the Agreements. An initial application filed on 22 September 2023 extended the default period to 6 December 2024[1]. The second application extended the default period to 6 June 2025[2]. The third application further extended the default period to 6 October 2025[3].
[4] This application was filed on 29 September 2025 and seeks a further extension of the default period to 6 January 2026. The operation of the Agreements has, by force of the Transitional Act, been preserved pending the determination of this application.
[5] Each of the earlier extensions were sought and granted on the basis that subitem 20A(7) applied where bargaining for a replacement agreement was ongoing.
[6] In the period since the last extension, bargaining has continued for a single enterprise agreement to replace the Agreements. Employees were requested to vote on a proposed agreement between 8 and 16 September 2025. The ballot did not endorse the proposed agreement.
[7] Since the unsuccessful ballot, bargaining has recommenced. Consequently subitem 7 continues to apply. We have considered whether it is appropriate to extend the default periods where the bargaining, which now appears to be protracted, has not resulted in a replacement agreement. The parties seek a short extension to 6 January 2026 as they believe an agreement is imminent. We are persuaded that a short extension is appropriate in those circumstances. It is a matter of concern that an agreement has yet to be reached. Had the parties not indicated that an agreement is imminent we would be reluctant to conclude that another extension is appropriate.
[8] As we are satisfied on the basis of the material filed that subitem 20A(7) continues to apply and that it is appropriate to extend the default periods we must extend the default periods.
For how long should the default periods be extended?
[9] The length of extension granted is a discretionary matter**.** In Suncoast Scaffold the Full Bench observed at [18] that_:_
Although the Commission is required to grant an extension to the default period if the conditions of paragraph (a) or (b) of subitem (6) are satisfied, it has a discretion as to the length of the extension, subject to the limitation that the extension cannot be for more than four years. The Commission is not obliged to grant the period of extension sought in the application: s 599 of the FW Act.[4]
[10] The parties seek an extension to 6 January 2026 to finalise an agreement. We are of the view that a slightly longer period is appropriate in the circumstances.
[11] We will instead extend the default period to 6 March 2026. Given the time of year the additional time will, we consider, give the parties adequate time to conclude bargaining and have the replacement agreement approved. Should an agreement not be concluded in that timeframe we will be reluctant to extend the default periods further.
[12] We have, pursuant to subitem 20A(6)(a), decided to extend the default periods for both Agreements to 6 March 2026. The Agreements are published, in accordance with subitem 20A(10A)(c), on the Fair Work Commission's website.
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