TAFE & Adult Provision Zombie agreements undead

In 2022, federal parliament passed the Secure Jobs, Better Pay Amendment Act 2022, featuring some of the most significant changes to Australia’s industrial relations laws in the last decade.

A key change was the expiration of zombie agreements. All zombie agreements – those in place before 1 January 2010 and still in operation, despite having passed their nominal expiry date – were set to automatically end on 6 December 2023, unless an extension was granted by the Fair Work Commission (FWC).

The AEU has 14 zombie agreements within the disability services sector, with clauses that were significantly better than those in the modern award. The AEU wrote to employers with zombie agreements, offering them the opportunity to join the disability MEA or to negotiate for a new enterprise agreement.

Several services opted to negotiate with the AEU for a new agreement, and some joined the MEA. The remainder either did not respond or did not choose an option.

In addition to the termination of zombie agreements, the Secure Jobs Act introduced a supported bargaining stream, in effect since 6 June 2023. This stream is designed to assist and encourage employers and employees who may, for several reasons, find it difficult to bargain at their workplace.

On 26 April 2024, the FWC granted all 11 extensions, preserving above-award conditions for all workers covered by the zombie agreements at each of these disability services.

The effect of a supported bargaining authorisation is that the employers listed in the authorisation are subject to certain rules in relation to the agreement, such as bargaining orders. Once a supported bargaining authorisation is made, the FWC has powers to assist parties to reach an enterprise agreement that meets the needs of both the employer and employees.

Late last year, the AEU and HACSU jointly applied to the Fair Work Commission to approve a disability service supported bargaining authorisation. At the same time, the AEU applied to have the zombie agreements for the remaining 11 disability services extended for up to a year.

On 26 April 2024, the FWC granted all 11 extensions, preserving above-award conditions for all workers covered by the zombie agreements at each of these disability services. These include an additional two weeks of annual leave, five extra personal leave days, allocation of administration time, as well as planning days. This is a huge win for those members.

The process of the supported bargaining authorisation for the 11 disability services covered by the zombie agreements is due to be heard in the FWC in November of this year. The majority of employers have opposed the bargaining authorisation, which has led to a lengthy process culminating in the upcoming two-week hearing where the commission will hear positions from all parties before a decision is made.

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