Application by Annie Dennis Children’s Centre Inc. and Others

[2025] FWC 143

[2025] FWC 143

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.248—Single interest employer authorisation

Application by Annie Dennis Children’s Centre Inc. and Others

(B2024/1578)

DEPUTY PRESIDENT EASTON SYDNEY, 15 JANUARY 2025

Application for a proposed single interest employer authorisation

1. This matter concerns an application for a single interest employer authorisation made by 55 employers under s.248 of the Fair Work Act 2009 (Cth). A single interest employer authorisation will allow the applicant employers to bargain together for a proposed multi-employer enterprise agreement, pre-emptively entitled the Professional Community Standard 2024.

1. All the applicant employers (referred to collectively in this decision as “the Employers”) operate community childcare facilities in Victoria and are represented by the Community Child Care Association (CCCA). A full list of the Employers will be attached to the authorisation.

1. The proposed agreement will cover the Employers and their employees who are currently covered by the Children Services Award 2010 (MA000120) and the Educational Services (Teachers) Award 2020 (MA000077). The proposed agreement will not apply to employees covered by the following enterprise agreements:

   ·   Victorian Early Childhood Teachers and Educators Agreement 2020 (or its successors);  

   ·   Victorian Early Education Agreement 2021 (or its successors);

   ·   Victorian Early Childhood Agreement 2021 (or its successors);

   ·   Early Education Employees Agreement 2020 (or its successors).

1. The employees covered by the proposed authorisation are currently covered by an earlier multi-employer agreement: Professional Community Standard 2021 (AE516886). The nominal expiry date of the Professional Community Standard 2021 is 31 December 2023.

1. The application notes that 21 of the 55 Employers employ workers that are covered by another single interest authorisation relating to the proposed Victorian Early Childhood Teachers and Educators Agreement 2024 (see PR775629, issued in [2024] FWC 1447).  Those employees are explicitly excluded from the present application and proposed authorisation.

1. The Australian Education Union (AEU) and the United Workers’ Union (UWU) represent employees who will be covered by the proposed Authorisation and enterprise agreement. The UWU has advised the Commission that it supports the application, and the AEU has advised that it does not oppose it. Neither union took issue with the submissions and materials provided by CCCA nor sought to provide any evidence. As such I have determined this matter based upon the materials filed by CCCA on behalf of the Employers.

1. I have decided to grant the application and have separately issued the Authorisation as sought. I will briefly state below my reasons for doing so.

1. While the FW Act has previously provided for single interest authorisations, the basis and operation of the authorisations was significantly amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (SJBP Act).

1. Sections 248 to 250 of the FW Act now provide:

“248 Single interest employer authorisations

(1)  The following may apply to the FWC for an authorisation (a single interest employer authorisation) under section 249 in relation to a proposed enterprise agreement that will cover two or more employers:

(a)     those employers;

(b) a bargaining representative of an employee who will be covered by the agreement.

(2)       The application must specify the following:

(a)     the employers that will be covered by the agreement;

(b)     the employees who will be covered by the agreement;

(c) the person (if any) nominated by the employers to make applications under this Act if the authorisation is made.

249 When the FWC must make a single interest employer authorisation

Single interest employer authorisation

(1) The FWC must make a single interest employer authorisation in relation to a proposed enterprise agreement if:

(a)     an application for the authorisation has been made; and

(b)     the FWC is satisfied that:

(i) at least some of the employees that will be covered by the agreement are represented by an employee organisation; and

(ii) the employers and the bargaining representatives of the employees of those employers have had the opportunity to express to the FWC their views (if any) on the authorisation; and

(iii) if the application was made by 2 or more employers under paragraph 248(1)(a)—the requirements of subsection (1A) are met; and

(iv)  if the application was made by a bargaining representative under paragraph 248(1)(b)—each employer either has consented to the application or is covered by subsection (1B); and

(v) the requirements of either subsection (2) or (3) (which deal with franchisees and common interest employers) are met; and

(vi) if the requirements of subsection (3) are met—the operations and business activities of each of those employers are reasonably comparable with those of the other employers that will be covered by the agreement.

(1AA)  If:

(a) the application for the authorisation was made by a bargaining representative under paragraph 248(1)(b); and

(b)  an employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;

it is presumed that the operations and business activities of the employer are reasonably comparable with those of the other employers that will be covered by the agreement, unless the contrary is proved.

Additional requirements for application by employers

(1A)     The requirements of this subsection are met if:

(a)  the employers that will be covered by the agreement have agreed to bargain together; and

(b)  no person coerced, or threatened to coerce, any of the employers to agree to bargain together.

Additional requirements for application by bargaining representative

(1B)     An employer is covered by this subsection if:

(a)  the employer employed at least 20 employees at the time that the application for the authorisation was made; and

(b)  the employer has not made an application for a single interest employer authorisation that has not yet been decided in relation to the employees that will be covered by the agreement; and

(c)  the employer is not named in a single interest employer authorisation or supported bargaining authorisation in relation to the employees that will be covered by the agreement; and

(d)  a majority of the employees who are employed by the employer at a time determined by the FWC and who will be covered by the agreement want to bargain for the agreement; and

(e)  subsection (1D) does not apply to the employer.

(1C) For the purposes of paragraph (1B)(d), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.

(1D)     This subsection applies to an employer if:

(a)  the employer and the employees of the employer that will be covered by the agreement are covered by an enterprise agreement that has not passed its nominal expiry date at the time that the FWC will make the authorisation; or

(b)  the employer and an employee organisation that is entitled to represent the industrial interests of one or more of the employees of the employer that will be covered by the agreement have agreed in writing to bargain for a proposed single‑enterprise agreement that would cover the employer and those employees or substantially the same group of those employees.

Franchisees

(2)  The requirements of this subsection are met if the employers carry on similar business activities under the same franchise and are:

(a)     franchisees of the same franchisor; or

(b)     related bodies corporate of the same franchisor; or

(c)     any combination of the above.

Common interest employers

(3)      The requirements of this subsection are met if:

(a)     the employers have clearly identifiable common interests; and

(b)     it is not contrary to the public interest to make the authorisation.

(3A)  For the purposes of paragraph (3)(a), matters that may be relevant to determining whether the employers have a common interest include the following:

(a)     geographical location;

(b)     regulatory regime;

(c)  the nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises.

(3AB)  If:

(a)  the application for the authorisation was made by a bargaining representative under paragraph 248(1)(b); and

(b)  an employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;

it is presumed that the requirements of subsection (3) are met in relation to that employer, unless the contrary is proved.

Calculating number of employees

(3AC) For the purposes of calculating the number of employees referred to in paragraph (1AA)(b), (1B)(a) or (3AB)(b):

(a)     employee has its ordinary meaning; and

(b)  subject to paragraph (c), all employees employed by the employer at the time that the application for the authorisation was made are to be counted; and

(c)  a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer; and

(d)     associated entities of the employer are taken to be one entity.

Operation of authorisation

(4)       The authorisation:

(a)     comes into operation on the day on which it is made; and

(b)     ceases to be in operation at the earlier of the following:

(i) at the same time as the enterprise agreement to which the authorisation relates is made;

(ii)  12 months after the day on which the authorisation is made or, if the period is extended under section 252, at the end of that period.

249A Restriction on making single interest employer authorisations

The FWC must not make a single interest employer authorisation in relation to a proposed enterprise agreement if the agreement would cover employees in relation to general building and construction work.

250 What a single interest employer authorisation must specify

What authorisation must specify

(1) A single interest employer authorisation in relation to a proposed enterprise agreement must specify the following:

(a)     the employers that will be covered by the agreement;

(b)     the employees who will be covered by the agreement;

(c)  the person (if any) nominated by the employers to make applications under this Act if the authorisation is made;

(d)     any other matter prescribed by the procedural rules.

Authorisation may relate to only some of employers or employees

(2)  If the FWC is satisfied of the matters specified in subsection 249(2) or (3) (which deal with franchisees and common interest employers) in relation to only some of the employers that will be covered by the agreement, the FWC may make a single interest employer authorisation specifying those employers and their employees only.

(3)  The FWC may make a single interest employer authorisation that does not specify one or more employers specified in an application for the authorisation, and the employees (the relevant employees) of those employers specified in that application, if the FWC is satisfied that:

(a) the employers are bargaining in good faith for a proposed enterprise agreement that will cover the employers and the relevant employees, or substantially the same group of the relevant employees; and

(b) the employers and the relevant employees have a history of effectively bargaining in relation to one or more enterprise agreements that have covered the employers and the relevant employees, or substantially the same group of the relevant employees; and

(c) on the day that the FWC will make the authorisation, less than 9 months have passed since the most recent nominal expiry date of an agreement referred to in paragraph (b).

(4) If the effect of subsection (3) is that no employers would be specified in the authorisation, the FWC may refuse the application for the authorisation.”

1. The requirements for making an authorisation under s.249 of the FW Act vary, depending upon the nature of the application and the circumstances of the employers involved. In the present case, the applicants are employers who seek to bargain together and so the “additional” requirements of s.249(1A) apply. It follows that the terms of s.249(1B) and consequential provisions do not apply.

1. At the time the application was made five of the Employers employed 50 or more employees. This means that the ‘rebuttable presumptions’ concerning the common interest and public interest requirements of s.249(3) and the reasonable comparability of operations and business activities of the employers under s.249(1)(b)(vi) apply. In any event I am satisfied about those matters based upon CCCA’s materials.

1. I am satisfied that all the relevant requirements under ss.249 and 249A of the FW Act have been met. I briefly deal with each in turn.

Was a valid application made?

1. The application was made by the Employers who would be covered by the (proposed) agreement. The application specifies the required matters, including the person nominated by the employers to make applications under the FW Act if the Authorisation is made (per s.248(2)(c)). I am satisfied that the requirements of ss.248 and 249(b)(i) have been met.

Are at least some of the employees who will be covered by the Agreement represented by an employee organisation?

1. I am satisfied that at least some of the employees that will be covered by the agreement are represented by an employee organisation (per s. 249(1)(b)(i)). The Employers employ one or more persons who are a member of, and are represented by, the AEU or UWU.

Have the Parties had the opportunity to express their views?

1. I am satisfied that the Employers and the AEU and UWU as the bargaining representatives of the employees have had the opportunity to express their views on the proposed authorisation (per s.249(1)(b)(ii)).

Have the Employers agreed to bargain together?

1. I am satisfied that the employers that will be covered by the agreement have agreed to bargain together, and that no person has coerced or threatened to coerce any of the Employers to agree (per s.249(1A)).

Have the requirements of either ss.249(2) or 249(3) been met?

1. In this matter s.249(3) applies. As such the Employers must meet the common interest and the ‘not contrary to the public interest’ requirements.

1. In Application by UWU, AEU and IEU [2023] FWCFB 176 at [34] the Full Bench said the following in relation to the expression ‘common interests’ in s.243(1)(b)(ii) in the context of an application for a supported bargaining authorisation:

“…the expression ‘common interests’ used in s 243(1)(b)(ii) in connection with the employers the subject of an authorisation application is one of wide import, and on its ordinary meaning extends to any joint, shared, related or like characteristics, qualities, undertakings or concerns as between the relevant employers. The diversity of the non-exhaustive list of ‘examples’ of common interests in s 243(2) gives contextual support to the breadth of meaning which we assign to the expression. The common interests must be ‘clearly identifiable’, that is, plainly discernible or recognisable, but need not be self-evident.”

1. Noting the different role to be played by the “non-exhaustive lists” of common interests that are expressed in the two sections involved, the notion of what may be common interests in the above approach is of guidance (see also Independent Education Union of Australia v Catholic Education Western Australia Limited and others[2023] FWCFB 1177 at [31]).

1. I am satisfied that the Employers have clearly identifiable common interests (per s.249(3)(a)). Amongst other matters, the following factors identified in the application confirm that finding:

• Geographical Location: Each Employer operates an early childhood education and care service in the State of Victoria.

• Shared Regulatory Regime: The Employers all operate under a common regulatory regime, namely the National Quality Framework (Framework), consisting of the Education and Care Services National Law Act 2010 (Cth) as adopted by the state of Victoria, and the Education and Care Services Regulations 2011 (Cth). The Framework is regulated and managed by the Australian Children’s Education & Care Quality Authority.

• Common Funding Arrangements: Each Employer operates an early childhood long day care service or occasional care service in Victoria. They are all substantially funded by the Federal Government’s Child Care Subsidy System, which is administered through the Department of Education and Services Australia and is underpinned by the Family Assistance Law. The Family Assistance Law is a collective term that refers to the following legislative instruments: A New Tax System (Family Assistance) Act 1999, A New Tax System (Family Assistance)(Administration) Act 1999, Family Assistance Legislation Amendment (Jobs for Families Child Care Package) Act 2017, Family Assistance Legislation Amendment (Cheaper Child Care) Act 2022, Child Care Subsidy Minister’s Rules 2017 and Child Care Subsidy Secretary’s Rules 2017.

  Each Applicant Employer is an ‘approved provider’ for the purposes of the Child Care Subsidy System, and consequently are approved to operate their services in Victoria and deemed suitable to ensure the health, safety, wellbeing and educational outcomes of children in accordance with the Framework.

  The Employers are also intending to apply for and receive the Early Childhood and Care Worker Retention Grant, for which they must demonstrate that they can apply the minimum pay rates through an eligible workplace instrument. The proposed Professional Community Standard 2024 is intended to be made to meet this requirement.

  The Employers are also eligible to apply for and receive ‘Best Start, Best Life’ funding from the Victorian Government to reduce the cost of 3 and 4-year-old kindergarten programs in long day care services.

• Shared purpose and collaborative approach: The Employers are all small, not-for-profit services that operate to meet the needs of their local community and do not commercially compete with other community services. Such services often collaborate with one another through local networks to support their operations, management practices and programming.

• Lack of dedicated human resources and industrial relation expertise: The Employers each have limited or no dedicated human resources or industrial relations expertise and are managed by volunteers, parent committees or management boards.

• Terms and conditions of employment in those enterprises: The Employers operate in a predominately award covered industry and share common terms and conditions of employment underpinned by the Children’s Services Award 2010 and the Educational Services (Teachers) Award 2020. The majority of the Employers have been covered by the Professional Community Standard 2021 and its predecessor agreements.

1. Having regard to all of the circumstances of this matter I am also satisfied that it is not contrary to the public interest to make the Authorisation (per s.249(3)(b) and see Australian Municipal, Administrative, Clerical and Services Union v Central Goldfields Shire Council, Ararat Rural City Council[2024] FWCFB 444 at [69] to [80]).

Do the Employers have reasonably comparable operations and business activities?

1. As the requirements of s.249(3) have been met, s.249(1)(b)(vi) of the FW Act requires that the operations and business activities of each of the Employers are reasonably comparable with those of the other employers that will be covered by the Agreement.

1. Having regard to the factors listed above, I am satisfied of this requirement. Of particular relevance is the size and nature of each applicant Employer, the general lack of dedicated human resources or industrial relations expertise and the relevant regulatory and funding schemes.

1. Taking into account factors listed above, it would not be practicable or appropriate for each of the Employers to bargain with their employees for separate enterprise agreements.

General building and construction work

1. The Agreement will not cover employees in relation to general building and construction work. This meets the requirements of s.251A of the FW Act.

Other matters

1. The proposed authorisation specifies each of the matters required by s.250(1) of the FW Act.

1. The findings made apply to all of the Employers and for the purposes of s.250(2) of the FW Act I am satisfied that each should be specified in the Authorisation.

1. The circumstances contemplated in ss.250(3) and (4) do not apply.

Conclusions

1. Given my satisfaction of the relevant requirements, I am obliged to issue the Authorisation under s.249(1) of the FW Act.

1. The Authorisation has been issued separately in PR783317.

1. Pursuant to s.249(4) of the FW Act, this Authorisation comes into operation on the day it is made (15 January 2025) and will cease to have effect on the earlier of the day on which the proposed enterprise agreement is made or 12 months after the date of this Authorisation, subject to any extension pursuant to s.252.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR783316>

Annexure A: The Employers

Number	Legal name of Employer	Trading name	ABN
1	Annie Dennis Children's Centre Inc.	Annie Dennis Children's Centre Inc.	61 512 271 207
2	Auburn Kindergarten and Childcare Centre Inc	Auburn Kindergarten & Childcare Centre	71 391 629 625
3	Barry Beckett Childrens Centre Incorporated	Barry Beckett Children’s Centre Incorporated	54 757 800 450
4	Brenbeal Childrens Centre Incororated	Brenbeal Children’s Centre Inc	31 634 692 118
5	Clifton Street Children’s Centre	Clifton Street Childrens Centre Inc	93 086 325 587
6	Dandenong Day Nursery	Dandenong Day Nursery Inc- Dandenong Family Day Care	16 218 366 209
7	Darebin Childcare and Kindergarten Inc.	Darebin Childcare and Kindergarten Inc	53 743 004 990
8	East Bentleigh Child Care Centre Association Inc.	East Bentleigh Child Care Centre Association Inc	98 216 454 135
9	East Brunswick Kindergarten and Childcare Centre Inc	East Brunswick Kindergarten Inc	11 753 464 251
10	Fifth Avenue Day Care Centre	Fifth Avenue Day Care Centre Inc	60 721 758 996
11	Kensington Community Children's Cooperative Limited	Kensington Community Children's Co-operative	80 355 779 265
12	Keysborough Community Childrens Centre Incorporated	Keysborough Community Childrens Centre	94 135 164 817
13	Kialla Children's Centre Inc.	Kialla Children's Centre Inc.	31 840 815 653
14	Kids on the Avenue Children's Centre Inc	Kids on the Avenue Children's Centre Inc	99 134 609 833
15	Melbourne University Family Club Co-operative Limited	Melbourne University Family Club Co-Operative Limited	59 183 819 535
16	Nara Community Early Learning Centre	Nara Community Child Care Centre Inc	54 684 957 673
17	Perry Street Child Carecentre and Elizabeth Gorman Memorial Kindergarten Incorporated	Perry Street Childcare Centre Inc	21 457 114 272
18	Poets Grove Family and Children's Centre Inc.	Poets Grove Family and Children's Centre Inc.	12 749 683 753
19	Shirley Robertson Childrens Centre Inc	Shirley Robertson Childrens Centre Inc	46 535 101 157
20	The Merri Community Childcare Centre and Kindergarten Inc	The Merri Community Child Care Centre Inc	15 617 321 440
21	Wattletree Early Childhood Centre Inc	Wattletree Early Childhood Centre Inc	47 833 947 260
22	Anne Sgro Children's Centre Association Incorporated	Anne Sgro Childrens Centre Association Incorporated	25 725 348 150
23	Ballarat Child Care Co Operative	Ballarat Child Care Co-operative Ltd	48 537 088 355
24	Brandon Park Children's Centre	Brandon Park Children's Centre Inc	78 396 730 588
25	Brunswick Creche & Day Nursery	Brunswick Creche & Day Nursery Inc	21 759 538 572
26	Castlemaine Child Care Co Operative	Castlemaine Child Care Co-op Ltd	47 571 176 385
27	Central Park Child Care Centre	Central Park Child Care Inc	31 878 829 402
28	Dawson Street Child Care Co-op Ltd	Dawson Street Child Care Co-Operative Ltd	88 912 908 549
29	Daylesford Community Child Care Centre Inc	Daylesford Community Child Care Centre Inc	60 044 287 049
30	Deakin & Community Childcare Cooperative Ltd	Deakin & Community Childcare Co-Operative Ltd	73 109 356 794
31	Deep Creek Child Care Centre Inc	Deep Creek Child Care Centre Inc.	81 280 155 088
32	East Melbourne Child Care Co-op Ltd	East Melbourne Child Care Co-Operative Ltd	62 363 490 552
33	East West Childcare Association Inc	East West Childcare Association Inc	20 727 095 254
34	Eildon Road Childrens Centre Inc	Eildon Road Childrens Centre Inc	46 178 249 193
35	Eltham Child Care Co-op Ltd	Eltham Child Care Co-Operative Ltd	47 354 516 246
36	John Street Community Early Childhood Co-op Limited	John Street Community Early Childhood Co-op Limited	61 075 570 598
37	Knaith Road Child Care Centre Inc.	Knaith Road Child Care Centre Inc.	71 983 230 681
38	Malvern Community Child Care Cooperative Limited	Malvern Community Child Care Co-Operative	74 542 918 323
39	Meruka Child Care Co-operative Ltd	Meruka Child Care Co-Operative Ltd	32 855 828 775
40	Monash Children's Centre (Clayton) Co-operative Limited	Monash Children's Centre (Clayton) Co-operative	76 562 356 906
41	Monash (Caulfield) Child Care Association Inc.	Monash (Caulfield) Child Care Association	64 729 275 810
42	Monash Community Family Co-operative Limited	Monash Community Family Co-Operative Limited	47 916 879 428
43	Norfolk Street Child Care Centre	Norfolk Street Child Care Centre	50 732 950 463
44	North Ringwood Community Children's Centre Inc	North Ringwood Community Childrens Inc	36 762 103 472
45	Occasional Child Care Centre Diamond Creek Inc.	Occasional Child Care Centre Diamond Creek Inc.	50 644 730 820
46	Park Street Early Learning Co-op Ltd.	Park Street Early Learning Co-Op Ltd.	69 719 801 165
47	Stonnington Childrens Centre Inc	Stonnington Children’s Centre Inc	27 324 045 484
48	Tatura Children's Centre Inc	Tatura Children's Centre Inc	83 541 817 988
49	The Avenue Childrens Centre Inc.	The Avenue Children’s Centre Inc.	76 056 375 685
50	Beechworth Community Child Care Centre Inc	The Beechworth Community Child Care Centre Inc	17 664 630 962
51	The Elwood Childrens Centre Inc	The Elwood Childrens Centre Inc	21 178 121 760
52	Through Road Child Care Association Inc.	Through Road Child Care Association Inc	19 346 712 348
53	Virginia Park Child Care Assoc Inc	Virginia Park Child Care Association Inc	25 935 658 369
54	Wimble Street Child Care Co-operative Limited	Wimble Street Child Care Co-Operative Limited	74 427 674 179
55	Windsor Community Children's Centre Co-op Ltd	Windsor Community Children's Centre Co-op Ltd	56 547 504 991