Application by the Independent Education Union of Australia
[2017] FWC 4528
•7 SEPTEMBER 2017
| [2017] FWC 4528 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Application by the Independent Education Union of Australia
(B2017/668, B2017/669, B2017/671, B2017/672, B2017/673, B2017/674, B2017/675, B2017/676, B2017/678, B2017/679, B2017/680)
COMMISSIONER JOHNS | SYDNEY, 7 SEPTEMBER 2017 |
Proposed protected action ballots of employees of the Trustees of various Roman Catholic Church Dioceses
The Applications
[1] The word “communion” derives from the Latin communion and means “sharing in common”. All of the churches within the Roman Catholic Church are in full communion through bonds of faith, sacraments and pastoral governance. This decision is, in part, about whether 11 dioceses of the Roman Catholic Church which are in full communion in NSW and the ACT are also engaged in a “common enterprise” with the consequence that their employees can engage in protected industrial action.
[2] On 2 August 2017 the Independent Education Union of Australia (IEU) made eleven applications to the Fair Work Commission (Commission) for protected action ballot orders (PABOs) pursuant to s.437 of the Fair Work Act 2009 (FW Act). Each application relates to the teaching employees of the Trustees of one of the Dioceses of the Roman Catholic Church in NSW and the ACT who are covered by the NSW and ACT Catholic Systemic Schools Enterprise Agreement 2015 (Current Agreement).
[3] The applications are opposed. The eleven employers are represented by their bargaining agent the Catholic Commission for Employment Relations (CCER).
[4] It is common ground between the parties that a number of the statutory requirements that would compel the Commission to issue the PABOs have been satisfied, that is that:
a) the Current Agreement passed its Nominal Expiry Date on 31 December 2016, 1
b) within 24 hours after making the applications for the PABOs, the applicant gave a copy of the applications to the employers (in this case through their bargaining representative the CCER), 2
c) the applications were made by a bargaining representative of employees who will be covered by a proposed enterprise agreement, 3
d) the applications specified the group of employees who are to be balloted, 4
e) the applications specified the questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action. 5
Issues in dispute
[5] The applications are opposed on the basis that, it was submitted:
a) they were not made pursuant to s.437 of the FW Act because,
i. the proposed enterprise agreement is a multi-enterprise agreement, 6 and
ii. there has not been a notification time in relation to the proposed enterprise agreement, 7 and
b) the Commission cannot be satisfied that the applicant has been, and is, genuinely trying to reach an agreement with the employers of the employees who are to be balloted. 8
[6] Relevant to whether the proposed agreement is a multi-enterprise agreement, is a critical issue whether the eleven Catholic Church dioceses the subject of those PABO applications are “single interest employers” as defined in s.172(5). Section 172(5) provides:
“(5) Two or more employers are single interest employers if:
(a) the employers are engaged in a joint venture or common enterprise; or
(b) the employers are related bodies corporate; or
(c) the employers are specified in a single interest employer authorisation that is in operation in relation to the proposed enterprise agreement concerned.”
[7] Multiple employers who are “single interest employers” may make a single-enterprise agreement pursuant to s.172(2) of the FW Act. If they are not “single interest employers”, they may only enter into a multi-enterprise agreement pursuant to s.172(3). The importance of the distinction for present purposes is that s.413(2) prohibits the taking of protected industrial action in relation to a proposed multi-enterprise agreement and s.437(2)(b) does not permit an application to be made for a PABO if the proposed enterprise agreement is a multi-enterprise agreement. Therefore if the proposed agreement to which the PABO applications relate could only be made as a multi-enterprise agreement and not a single-enterprise agreement, the applications cannot be granted, at least on the basis that they are currently advanced.
The hearing
[8] At the hearing;
a) the Applicant was represented by Mr Gibian of Counsel. Mr Gibian called the following people to give evidence,
i. Carol Matthews Assistant Secretary of the IEU (NSW/ACT Branch), and
ii. John Quessy, Secretary of the IEU (NSW/ACT Branch).
Both were cross-examined.
b) the Respondent was represented by Mr D O’Sullivan of Counsel. Mr Sullivan called the following people to give evidence,
i. Anthony Farley, Executive Director CCER, and
ii. Ian Baker, Director, Education, Policy and Programs CCER.
Both were cross-examined.
[9] In advance of the hearing the parties filed materials. In coming to this decision the Commission, as presently constituted, has had regard to the following documents in addition to the oral evidence and other documents tendered during the hearing:
a) 11 x Form F34 – Applications for a protected ballot order.
b) Form 34B – Statutory declaration in support of an application for a protected action ballot order made by Carol Matthews in respect of the Trustees of the Roman Catholic Church Diocese of Armidale (Exhibit 1),
c) Form 34B – Statutory declaration in support of an application for a protected action ballot order made by Carol Matthews in respect of the Trustees of the Roman Catholic Church Diocese of Bathurst (Exhibit 2),
d) Form 34B – Statutory declaration in support of an application for a protected action ballot order made by Carol Matthews in respect of the Trustees of the Roman Catholic Church Diocese of Canberra/Goulburn (Exhibit 3),
e) Form 34B – Statutory declaration in support of an application for a protected action ballot order made by Carol Matthews in respect of the Trustees of the Roman Catholic Church Diocese of Lismore (Exhibit 4),
f) Form 34B – Statutory declaration in support of an application for a protected action ballot order made by Carol Matthews in respect of the Trustees of the Roman Catholic Church Diocese of Maitland/Newcastle (Exhibit 5),
g) Form 34B – Statutory declaration in support of an application for a protected action ballot order made by Carol Matthews in respect of the Trustees of the Roman Catholic Church Diocese of Sydney (Exhibit 6),
h) Form 34B – Statutory declaration in support of an application for a protected action ballot order made by Carol Matthews in respect of the Trustees of the Roman Catholic Church Diocese of Broken Bay (Exhibit 7),
i) Form 34B – Statutory declaration in support of an application for a protected action ballot order made by Carol Matthews in respect of the Trustees of the Roman Catholic Church Diocese of Wagga Wagga (Exhibit 8),
j) Form 34B – Statutory declaration in support of an application for a protected action ballot order made by Carol Matthews in respect of the Trustees of the Roman Catholic Church Diocese of Wicannia/Forbes (Exhibit 9),
k) Form 34B – Statutory declaration in support of an application for a protected action ballot order made by Carol Matthews in respect of the Trustees of the Roman Catholic Church Diocese of Wollongong (Exhibit 10),
l) Form 34B – Statutory declaration in support of an application for a protected action ballot order made by Carol Matthews in respect of the Trustees of the Roman Catholic Church Diocese of Parramatta (Exhibit 11), (Matthews Statutory Declaration) 9
m) Statement of Carrol Matthews dated 8 August 2017 (Exhibit 12),
n) Further Statement of Carrol Matthews dated 25 August 2017 (Exhibit 13),
o) Letter from the IEU to CCER dated 5 July 2017 (Exhibit 14),
p) Statement of John Quessy dated 8 August 2017 (Exhibit 15),
q) Further Statement of John Quessy dated 25 August 2017 (Exhibit 16),
r) Statement of Ian Baker dated 18 August 2017 (Exhibit 17),
s) Extract from Code of Canon Law (Book III, the Teaching Function of the Church, Title III, Catholic Education, Chapter 1, Schools) (Exhibit 18),
t) Statutory Declaration of Anthony Farley dated 8 August 2017 (Exhibit 19),
u) CCER Outline of Submissions dated 8 August 2017,
v) IEU Outline of Submissions dated 8 August 2017,
w) CCER Further Outline of Submissions dated 18 August 2017,
x) IEU Outline of Submissions in Reply dated 25 August 2017;
y) CCER Supplementary Submissions dated 4 September 2017, and
z) IEU Supplementary Submissions 4 September 2017.
Factual background
[10] Having considered all that has been put in relation to the matter, the Commission, as presently constituted, makes the following findings of fact:
a) On 4 September 2014 Vice President Lawler approved the Current Agreement as “a single-enterprise agreement”. 10 The Current Agreement provided that,
“8.1 NSW and ACT Catholic Systemic Schools strive to be:
a. truly Catholic in their identity and life
b. centres of the new evangelisation
c. places with the dignity potential of every student is recognised and developed
d. places where students are formed in the face and can achieve high levels of “Catholic religious literacy” and practice
e. places where the learning outcomes of every student are improved.
8.2 Role of employers - Employers are required to support the mission, teachings and ethos of the Catholic Church’s work in schools. It is expected that they,
a. acknowledge and accept that their work in schools as part of the mission of the Catholic Church
b. Agree in the performance of their role to uphold the mission, teachings and ethos of the Catholic Church in Catholic Education
c. Will avoid any influence on students that is not consistent with such mission, teachings or ethos.”
b) On 4 November 2016 the IEU wrote to the CCER providing it with “claims endorsed at the Union’s recent AGM on behalf of members in Catholic systemic schools.” The IEU wrote,
“…
I note that members have also raised issued about work intensification. As these matters relate to the organisation of work at a school and diocesan level, we will be raising these matters with Diocesan Directors in the first instance.
The Union will seek to clarify prior to the commencement of bargaining whether it is proposed that the agreement be made as a single interest agreement or a multi-enterprise agreement and to clarify whether all dioceses will be represented by the CCER in negotiations.” 11
c) On 9 November 2016 a copy of the 4 November 2016 letter was sent to the Diocesan Directors. 12
d) On 16 November 2016 the CCER replied to the 4 November 2016 letter in the following terms,
“I refer to your recent correspondence with each Diocese regarding your interest in discussing Teacher Workload Claims and whether the Diocesan Employers will agree to these inclusions in the EA or inclusion in the Work Practice Agreement.
In order to make such discussions as productive as possible, we ask that you nominate the areas for discussion for each Diocese and what outcomes you would seek in respect of each claim. These particulars should be forwarded to the [CCER] as the appointed bargaining agent for the Dioceses.
Once CCER has a clear indication of what you are seeking we will forward the outline of claims to the Dioceses. …” 13
e) On 17 November 2016 the IEU replied to the CCER. The CCER replied and said they would liaise with “Dioceses in relation to the claim and will come back to you in due course.” The IEU also wrote to the individual Dioceses.
f) By 18 November 2016 each of the 11 Dioceses had appointed CCER as their bargaining representative for an agreement to replace the Current Agreement.
g) On 21 November 2016 the CCER advised the IEU that it would be,
“meeting with the Directors of Education on 29 November 2016. Following this meeting CCER will be in a position to respond to your claims on behalf of Dioceses….”
h) On 22 November 2016 the IEU served supplementary claims.
i) On around 23 November 2016 11 Dioceses of New South Wales and ACT issued Notices of Employee Representational Rights. The notices referred to a multi-enterprise agreement.
j) On 24 November 2016 the IEU met with the CCER for the first time to commence bargaining.
k) On 1 December 2016 the IEU met with the CCER.
l) On 2 December 2016 the CCER provided the IEU with a draft Systemic Schools Multi-Enterprise Agreement (Draft Agreement). It provided that:
● the title of the agreement would “include reference to the fact that the Agreement is a “Multi””.
● there would be no change to the Mission of Catholic Schools in clause 8.
m) On 14 December 2016 the IEU met with the CCER and Diocesan representatives.
n) On 31 December 2016 the Current Agreement passed its Nominal Expiry Date, 14
o) Between December 2016 – February 2017 the IEU met with each of the Dioceses.
p) On 3 February 2017 the IEU met with the CCER.
q) On 7 February 2017 the CCER responded to the claims made by the IEU rejecting most of the claims.
r) Consequently, on 24 February 2017 the IEU wrote to each of the Dioceses. In part the IEU wrote;
“… In particular the letter the Union received on 7 February 2017. A number of matters have been referred by CCER to the Dioceses for further discussion. Notwithstanding this, the Union has received no formal response from Dioceses. Of particular relevance other following:
1. length of school year….
2. Personal/carer’s leave in Wilcannia-Forbes….
3. Teacher workload conditions.
a. Meetings….
b. Maximum class sizes
4. practical class sizes in secondary schools
a. emergency support for children with challenging behaviour….
b. face-to-face teaching and release from face-to-face….
c. release for Teacher Performance and Development, consultation across the year group and planning and open plan classrooms….
d. emails-teachers and other staff should not be expected to respond outside working hours….
e. release time to assist teachers in gaining proficient teacher status….
f. Additional promotion position responsible for accreditation…
g. Year 12 teachers and Term 4 arrangements….
h. Calendar for school commitments to be advised well in advance….
i. Request for additional data….
j. Programming….
k. Minimum number of school counsellors based on enrolments….
l. Improve conditions for VET teachers….
m. Mandatory appointment of full-time teacher librarians in secondary schools….
SPECIFIC DIOCESAN ISSUES
In addition to the above claim, the Union has raised specific issues with Dioceses, generally addressing issues particular to the Diocese’s or updating the relevant workload provisions.
The Union also seeks to finalise these matters as soon as possible.” 15
s) On 2 March 2017 the IEU met with the CCER.
t) On 17 March 2017 the CCER wrote to the IEU summarising the position of the Dioceses.
u) On 18 March 2017 the Council of the IEU passed a resolution that,
“…. note[d] a constructive dialogue with some employers towards improving conditions in work practice arrangements or a neck used to the existing EA has occurred and should continue.
…. supporte[d] individual EAs with each of the 11 dioceses and calls on officers and the executive to determine an appropriate timeline to initiate protected industrial action including part and full day stop work action prioritising the most recalcitrant of dioceses.”
v) On 23 March 2017 the CCER wrote to the IEU in the following terms,
“I am writing to you in relation to the negotiations for the New South Wales and ACT Catholic Systemic Schools Multi—Enterprise Agreement 2017 (the “Proposed EA”).
As you would be aware, the IEU’s initial log of claims dated 4 November 2016 sought clarification from CCER as to whether the Proposed EA would be a single interest or a multi-enterprise agreement. On around 23 November 2016 11 Dioceses of New South Wales and ACT issued Notices of Employee Representational Rights in respect of a multi-enterprise agreement in order to commence formal bargaining for the Proposed EA. This position was confirmed by CCER in bargaining meetings. At no stage did the Union raise any objection to this negotiations proceeded on the basis of a multi-enterprise agreement.
It is come to CCER’s attention that the Union has recently sought the support of its members to take protected industrial action in respect of the Proposed EA, in order to advance the Union’s log of claims.
We are seriously concerned that the IEU is encouraging members to breach provisions of the Fair Work Act 2009 (Cth) that prohibit the taking of protected industrial action in respect of a proposed multi-enterprise agreement.
CCER will discuss this with you as a matter of urgency at a meeting that will be convening next week.”
w) On 24 March 2017 the CCER wrote to the IEU in the following terms,
“…. CCER is concerned about the IEU’s stated intention in the March Reps Update to bargain for a single employer enterprise agreement with each of the 11 New South Wales and ACT Dioceses to cover their teachers and generally employees in Catholic systemic schools. The IEU’s position is contrary to our understanding that the parties had agreed to pursue a Multi--enterprise agreement, as expressed in our correspondence to you on 23 March.
In relation to any proposed discussions with Dioceses in relation to a single enterprise agreement, I would remind you that the Dioceses of each individually appointed CCER as the bargaining representative for the making of an agreement to replace the 2015 Catholic systemic schools enterprise agreement. As such, while it is appropriate for the IEU to continue the constructive discussions which are occurring with Dioceses in relation to Work Practice Agreements and other diocesan specific local arrangements, CCER reminds you that the discussions or enquiries relating to the enterprise agreement us be appropriately referred to CCER.” 16
x) On 29 March 2017 the IEU met with the CCER.
y) On 20 April 2017 the CCER wrote to the IEU in the following terms,
“I refer to our negotiations for a New South Wales and ACT Catholic Systemic Schools Multi-Enterprise Agreement 2017 (the “MEA”).
On behalf of the 11 Catholic Dioceses New South Wales and ACT, CCER wrote to propose the following terms of settlement to finalise negotiations between the parties.
….
4 Teacher Workload Conditions
5 Workload Intensification; and
6 IEU Additional claims for teachers (22 November 2016)
We understand that the Union has been involved in discussions with all of the Dioceses to resolve the claims submitted under these headings at a capped IC and or local level where appropriate. It is further understood that those discussions are nearing finalisation.
CCER is outlined in our letter of 14 March 2017 therefore the existence of any outstanding issues between the IEU and a particular Diocese do not prevent the parties from finalising negotiations for the MEA. 17
….”
z) On 10 May 2017 the IEU wrote to the CCER.
aa) On 19 May 2017 the CCER wrote to the IEU again referring to the proposed multi-employer agreement.
bb) On 31 May 2017 the IEU met with the CCER to discuss outstanding issues. 18
cc) On 2 June 2017 the IEU met with the CCER.
dd) On 6 June 2017 the IEU wrote to the CCER.
ee) On 7 June 2017 the IEU met with the CCER.
ff) On 20 June 2017 the IEU wrote to the CCER with a 9 page list of comments on the proposed MEA.
gg) On 23 June 2017 the CCER wrote to the IEU about the claims again referring to the proposed multi-employer agreement.
hh) Throughout this period the IEU continued to meet directly with Dioceses.
ii) On 5 July 2017 the IEU met with CCER about areas of disagreement.
jj) Also on 5 July 2017 the IEU wrote to the CCER under the heading “Catholic Systemic Schools Multi-enterprise Agreement”. 19
kk) On 17 July 2017 the IEU again met with the CCER. Matters remained unresolved. Consequently, the IEU wrote directly to Diocesan Directors.
ll) In telephone discussions between the IEU and the CCER on 18 and 19 July 2017 matter remained unresolved.
mm) On 2 August 2017 the IEU made the present applications.
The status of each respondent
[11] There are 11 Catholic Dioceses in NSW and ACT. They are individual legal entities.
[12] Dioceses are headed by a Bishop. There is no obligation on the Bishops to collaborate and share resources, but they presently do.
[13] Canon Law provides that,
“381 A diocesan bishop in the diocese entrusted to him has all ordinary, proper and immediate power which is required for the exercise of his pastoral function…
….
391 It is for the diocesan bishop to govern the particular church entrusted to him with legislative, executive and judicial power according to the norm of law.
….
392 Since he must protect the unity of the universal Church, a bishop is bound to promote the common discipline of the whole Church …
….
806 The diocesan bishop has the right to watch over and visit the Catholic schools in his territory, even those which members of religious institutes have founded or direct. He also issues prescripts which pertain to the general regulation of Catholic schools; these prescripts are valid also for schools which these religious direct, without prejudice, however, to their autonomy regarding the internal direction of their schools.”
[14] Bishops exercise their responsibility in relation to schools through their Diocesan Catholic Schools Authorities (which provide administrative and educational support to the schools in the dioceses).
[15] In 2007 the Catholic Education Commission (CEC) published “Catholic Schools at a Crossroads” a pastoral letter from the Bishops in NSW and the ACT. The Bishops called upon,
“…educational leaders and staff, clergy and religious, parents and parish communities, to dedicate themselves to ensuring that our schools:
● are truly Catholic in their identity and life,
● are centres of the new evangelisation,
● enable out students to achieve high levels of ‘Catholic religious literacy’,
● are led and staffed by people who will contribute to these goals.”
It records that,
“The Catholic school system is one of the ‘jewels in the crown’ of the Catholic community in our region. … it has … been a major arm of the Church’s engagement with our youth.”
The Pastoral letter then addresses:
● achievements and potential,
● trends in schools, parishes and society,
● identity of the Catholic school,
● Catholic schools as centres of ‘the new evangelisation’,
● passing on Catholic faith, life and culture,
● leading and staffing our schools in this new era,
● critical indicators of progress, and
● the adventure of Catholic schooling in the 21st Century.
[16] The Bishops act through the CEC (which they established). However, the CEC is not a body corporate. I was greatly assisted by and accept the evidence of Ian Baker. I accept that the CEC is an agent of the Province of Sydney and Archdiocese of Canberra and Goulburn. I accept also that the CEC does not produce strict policy or mandatory guidelines. They are not binding on the Bishops. I accept that the existence of the CEC in no way impedes the authority of the Bishops (or any one of them) to issue regulations governing educational policies of the Catholic schools in their dioceses. I accept that individual Diocesan Bishops are empowered to determine how and who will implement sacramental programs. I also accept that:
a) an existing Bishop of a Diocese currently acting through the CEC could, at any time, withdraw from it, or
b) a newly appointed Bishop in any Diocese could withdraw from the CEC and not comply with the policies/guidelines it produces.
[17] However, I can only decide this matter based on the evidence of the state of being as at the date of the applications (2 August 2017).
[18] The fact that the Bishops and their Dioceses remain separate entities is not the end of the issued. It does not mean they are not engaged in a common enterprise. It does not mean they:
a) cannot be a party to a single-interest agreement. Clearly they can. They were treated as such when the Current Agreement was approved.
b) can only come together under a multi-employer agreement.
[19] In fact, while the existence of the CEC is not determinative of the Dioceses being engaged in a common enterprise, it does evidence that the Bishops have come together for a common purpose, because they share in common a dedication to Catholic schools that:
a) are truly Catholic in their identity and life,
b) are centres of the new evangelisation,
c) enable out students to achieve high levels of ‘Catholic religious literacy’,
d) are led and staffed by people who will contribute to these goals.
[20] Traditionally the NSW Dioceses have bargained together. Some terms and conditions were contained in unregistered agreements (known as Work Practice Agreements).
The Catholic Education Commission
[21] The CEC is the policy and finance coordination body appointed by the NSW Catholic Bishops.
[22] As stated above, the CEC is not a body corporate. It does not participate in the management of schools. The CEC is not a teaching authority.
[23] Commonwealth Government funding is provided to New South Wales Catholic systemic schools via an Approved System Authority. The CEC is presently recognised by both the Commonwealth and State Governments is the Approved System Authority for the 11 dioceses. The CEC received funding under the Australian Education Act 2013 (Cth) and the Education Act 1990 (NSW).
[24] Catholic systemic schools receive approximately 80% of the income from Government sources (60% from the Commonwealth Government and 20% from the State, less in the ACT) the remaining 20% is from private sources, mostly school fees. The CEC negotiates with the Commonwealth and the State about funding on behalf of the Dioceses.
[25] The CEC distributes the funds received to the 11 Dioceses. However, the CEC does not dictate how that funding must be utilised. It does not set school fees.
[26] The CEC Charter 20 provides that the CEC,
● is established by the Bishops,
● is responsible to the Bishops,
● coordinates and represents Catholic School Education in NSW,
● provides leadership,
● assists and represents Catholic Schools Authorities,
● develops policies,
● provides guidance,
● provides advocacy, and
● negotiates government grants.
[27] However, at all times the direct management of schools rests with the Catholic Schools Authorities (under the canonical authority of the Diocesan Bishop).
[28] The CEC Mission Statement 21 provides that the CEC,
● seeks to promote and protect quality education,
● takes on a leadership role, coordinating and representing Catholic education,
● is to be a representative voice for Catholic School Authorities,
● has a,
○ leadership role,
○ evangelising role,
○ administrative role, and
○ educative role.
[29] The CEC is also a Block Grants Authority.
[30] I have also had regard to the 2016 Annual Report of the CEC. 22
Having regard to the evidence in these proceedings I am satisfied that, for all intents and purposes, the 11 separate Dioceses operate collectively on a voluntary basis through the CEC in relation to school policy, curriculum and schools funding matters.
From 1 July 2017 “Catholic Schools NSW” has been established. There is a 6 month transition period for the CEC to Catholic Schools NSW. After that time, the CEC will cease to exist.
Enterprise bargaining under the FW Act
[31] There are three types of agreements that can be made under the FW Act,
a) Single enterprise agreements, either by,
i. single employers, or
ii. a number of employers who are “single interest employers”, 23
b) Multi-enterprise agreements 24 (for a number of employers who are not “single interest employers”), and
c) Greenfields agreements. 25
[32] The FW Act defines “enterprise” to mean,
“a business, activity, project or undertaking.”
[33] Two or more employers are “single interest employers” if:
a) the employers are engaged in a joint venture or common enterprise; or
b) the employers are related bodies corporate; or
c) the employers are specified in a single interest employer authorisation that is in operation in relation to the proposed enterprise agreement concerned. 26
[34] These provisions are,
“directed towards enabling public sector or community sector employers to bargaining together where they are subject to a common regulatory regime and it would be counter-productive for them to compete on employment costs.” 27
[35] Only s.172(5)(a), i.e. whether the 11 Dioceses are engage in a “common enterprise”, arises in the present matter.
[36] In the lead up to bargaining for the Current Agreement,
a) On 18 March 2014 the CCER made an application to the then Minister for Employment for a Declaration under s.247 of the FW Act.
b) On 30 April 2014 the then Minister declared that 11 employers (the same employers in the present matters before the Commissioner) could “bargain together for a single-enterprise agreement covering teachers and support and operational staff” (Declaration).
c) On 2 May 2014 the CCER made an application to the Commission for a “single interest employer authorisation”.
d) On 9 May 2014 Commissioner McKenna made a “single interest employer authorisation”. 28
e) During the course of bargaining in May and June 2014 a number of PABOs were made (it would seem, without opposition by the CCER).
f) On 4 September 2014 Vice President Lawler approved the Current Agreement as “a single-enterprise agreement”. 29
[37] In deciding to make the Declaration, the then Minister would have had to consider the matters listed in s.247(4) of the FW Act, including,
“the interests that the relevant employers have in common, and the extent to which those interests are relevant to whether they should be permitted to bargain together.” 30
[38] On 18 March 2014 the CCER made a submission to the then Minister (2014 Submissions). It wrote,
“The Catholic Commission for Employment Relations (CCER) is a not-for-profit organisation established by the Bishops of the Catholic Church in the Dioceses of New South Wales and the Australian Capital Territory, to provide employment relations advice and representation to the Catholic Church within those Dioceses. CCER advises Catholic Systemic Schools (CSS), Catholic Independent Schools (CIS), Parishes, Dioceses and Religious Institutions and Social Welfare, Aged Care, Health and Children's Services run by the Catholic Church.
On behalf of the CSS we make application for a Single Interest Employer Declaration (SID) pursuant to s.247 of the Fair Work Act 2009 (the Act) to allow the following named employers to bargain for a new enterprise agreement in relation to teachers, support and operational staff employed in CSS:
1. Trustees of the Roman Catholic Church Diocese of Armidale;
2. The Trustees of the Roman Catholic Church for the Diocese of Bathurst;
3. The Trustees of the Roman Catholic Church for the Diocese of Broken Bay;
4. The Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn;
5. The Trustees of the Roman Catholic Church for the Diocese of Lismore;
6. The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle on behalf of the Catholic Schools Office;
7. Mr Dan White, Executive Director of Schools and legal representative of the Catholic Education Office Sydney;
8. The Catholic Education Office, Diocese of Parramatta;
9. The Trustees of the Roman Catholic Church for the Diocese of Wagga Wagga;
10. The Diocese of Wilcannia-Forbes (the Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes); and
11. Trustees of the Roman Catholic Church as trustees for the Wollongong Diocese Catholic School System.
In our view, there are a number of grounds in support of the proposed applications which may be summarised as follows:
i) CSS employers in NSW have collaborated on negotiations in employment relations coordinated by CCER, to formulate a shared bargaining agenda and discuss broader employment relations issues concerning their respective schools for at least 15 years. Most of the named employers have bargained together across a number of employment categories in the past. Furthermore, service with each of the named employers for various employment entitlements is recognised by the other named employers.
ii) The CSS employers share a common, rather than commercial interest. They are not-for profit and share the same Catholic religion and faith which binds them in their mission and purpose which includes educating students within the context of the teachings of the Catholic Church;
iii) CSS share a number of common pieces of legislation, awards, policy and administrative arrangements including government reporting arrangements;
iv) CCER is a not-for-profit organisation established by the Bishops of NSW and the ACT to provide employment relations advice to the Catholic Church. This arrangement of representation of CSS, which has developed over the years, has allowed for more efficiency in the bargaining process, while providing CSS with a capacity to deal with common issues; and
v) The employers receive funding from State or Territory and Commonwealth Governments and work collaboratively in their efforts to secure government funds and grants.
We consider that on the above grounds, there are sound arguments in favour of the Ministerial declaration sought under the Act. …”
[39] In relation to the 2014 Submissions the IEU submitted that,
“2. Section 247(4) of the FW Act sets out matters the Minister is required to take into account when deciding if to make a declaration under the section. Those matters include the interests the employers have in common (s 247(4)(b)), whether the employers are governed by a common regulatory regime (s 247(4)(c)), the extent to which the relevant employers operate collaboratively rather than competitively (s 247(4)(e)) and whether the employers are substantially funded by the Commonwealth, a State or a Territory (s 247(4)(g)).
3. On 1 September 2017, the CCER provided to the Commission a copy of its submission to the Minister dated 18 March 2014. The IEU did not previously have access to the submission made to the Minister in 2014. The submission to the Minister by the CCER confirms a number of features of the operations of the CCER which support a conclusion that the dioceses operate as part of a common enterprise. In particular:
(a) The Catholic Systemic Schools share the same Catholic religion and faith which binds them to a common mission and purpose, including to educate students within the context of the teachings of the Catholic Church.
(b) The Catholic Systemic Schools have a shared bargaining agenda, have discussed broader employment relations issues and have bargained together across a number of employment categories for at least 15 years, including recognising service of employees across the dioceses.
(c) The Catholic Systemic Schools share common legislative, award, policy and administrative arrangements. It is noted that submission refers to common policies and administrative arrangements adopted by Catholic Systemic Schools as well as common legislative or award requirements.
(d) The Catholic Systemic Schools received funding from State and Territory Governments and the Commonwealth Government and work collaboratively in their efforts to secure government funds and grants.
4. The submission can be considered to contain admissions relevant to whether the dioceses should be considered part of a “common enterprise” for the purposes of operating Catholic Systemic Schools. To the extent that the CCER has submitted in these proceedings that the dioceses do not share a common purpose1 or share common funding, policy and administrative arrangements, those submissions are inconsistent with the submissions the CCER made to the Minister and could not be accepted.
5. The fact that the CCER made application to the Minister on behalf of the dioceses as employers of staff in Catholic Systemic Schools and proclaimed that the employers share a common mission and purpose is significant. In Qantas Airways Ltd v AMWU (Print S5768, 8 May 2000), for example, Munro J observed (at [32]) that the words “carry on business … as a common enterprise” imply that “some weight, or at least consideration, must be given to the declared collective intent of the relevant employers.”
6. It might be suggested that application to the Minister or to the Commission for a “single interest employer authorisation” is unnecessary if the employers are engaged in a joint venture or common enterprise. The reason for the application being made to the Minister in 2014 is not clear. Whether the application was made to avoid any doubt about whether the dioceses are able to bargain as single interest employers or without the parties considering that question, the facts stated in the submission are relevant to whether the dioceses are engaged in a common enterprise and should be considered by the Commission in determining the present applications.”
[40] In relation to the 2014 Submissions the CCER submitted that,
“3. On 18 March 2014, the CCER wrote to the then Minister for Employment, the Honourable Eric Abetz to apply for a single interest employer declaration pursuant to s. 247 of the Act. In relation to the matter of common interest, the CCER made the following statement:
“The CSS employers share a common, rather than a commercial interest. They are not-for-profit and share the same Catholic religion and faith which binds them in their mission and purpose which includes educating students within the context of the teachings of the Catholic Church;”
4. The above statement to the Minister is consistent with the evidence before the Commission on 31 August 2017 concerning the respondents to the current applications.
5. The CCER submission is that that a “common interest” for the purposes of s.247 is not sufficient to constitute a “common enterprise” for the purposes of ss. 175(5)(a).
6. The Act identifies separate categories of “single interest employers”, which includes a “common enterprise” at ss. 175(5)(a), or “employers which are specified in a single interest employer authorisation” at ss. 175(5)(c).
7. A condition of receiving a single interest authorisation for employers which are not franchisees is that all the employers have been specified in a declaration made under s.247.
8. The categories of employers that are intended to be covered by single interest declarations are set out in the Fair Work Explanatory Memorandum as follows:
1041. The categories of employers that might potentially be the subject of a declaration are those which receive a common source of funding, do not compete with each other and which conduct their workplace relations activities through a central body. Categories of employers that may be considered in this context include:
● public hospitals that are technically distinct employers, but have a high degree of coordination and common employment arrangements;
● schools which share common employment arrangements and a common funding source and arrangements; and
● school councils or parents and friends associations that are technically separate employers but who may employ additional staff to work within a single public school system.
9. The respondents were and are clearly envisaged as a category of employers for the purposes of s. 247, particularly when regard is had to:
i) Common source of government funding; and
ii) Common employment arrangements, in so far as conditions of employment are specified in the existing enterprise agreement.
10. In addition, the respondents did and continue to have a common interest for the purposes of s. 247 as set out in the 18 March 2014 correspondence.
11. In answer to the Commission’s question as to what has changed since 18 March 2014, the parties had agreed to pursue new enterprise agreements as multi-enterprise agreements. For ease of administration and process, CCER proposed multi-enterprise agreements to which the IEU agreed to in regard to the NSW and ACT Catholic Systemic Schools Principals Multi-Enterprise Agreement 2017 and did not object to in regard to the current proposed agreement.
12. The CCER submission was and remains that the respondents are not a “common enterprise” for the purposes of ss. 175(5)(a) and this is consistent with the statutory scheme outlined above.”
Is the proposed enterprise agreement a multi-enterprise agreement?
[41] For the reasons that follow, the answer to this question is “no”.
The IEU’s Submissions
[42] The applicant submitted that:
“10. …, objection is taken to the making of the protected action ballot orders based upon the understanding that the agreement proposed by the CCER on behalf of the dioceses is a multi-enterprise agreement. Section 437(2)(b) prevents an application being made for a ballot order if the proposed enterprise agreement is a multi-enterprise agreement.
11. A multi-enterprise agreement is defined in s 172(3) as an agreement made by two order more employers who are not all “single interest employers”. A “single interest employer” is defined in s 172(5) as follows:
(5) Two or more employers are single interest employers if:
(a) the employers are engaged in a joint venture or common enterprise; or
(b) the employers are related bodies corporate; or
(c) the employers are specified in a single interest employer authorisation that is in operation in relation to the proposed enterprise agreement concerned.
12. Two or more employers who are “single interest employers” may make a single enterprise agreement in accordance with s 172(2) of the Act. Relevantly, if the 11 dioceses are engaged in a common enterprise, there are “single interest employers” and cannot make a multi-enterprise agreement. If that is so, the agreement proposed by the CCER on behalf of the dioceses is, in fact, a single enterprise agreement.
13. The concept of a “common enterprise” is not defined in the Act. Reference is often made to the observations of Mason J in Australian Softwood Forestry Pty Ltd v Attorney-General (NSW); Ex rel Corporate Affairs Commission (1981) 148 CLR 121 at 133:
The argument is that in order to constitute a ‘common enterprise’ there must be a joint participation in all the elements and activities that constitute the enterprise. I do not agree. An enterprise may be described as common if it consists of two or more closely connected operations on the footing that one part is to be carried out by A and the other by B, each deriving a separate profit from what he does, even though there is no pooling or sharing of receipts of profit. It will be enough that the two operations constituting the enterprise contribute to the overall purpose that unites them. There is then an enterprise common to both participants and, accordingly, a common enterprise.
14. Other decisions have referred to the commonality of interest and closeness of connection between the relevant employers: see also Co-operative Building Society of South Australia Ltd v Australian Securities Commission (1993) 113 ALR 244 at 252-253; Qantas Airways Ltd v AMWU (Print S5768, 8 May 2000) at [29]; Re Bakers Delight Holdings Ltd (2002) 119 IR 20 at [19]; Yum Restaurants Australia Pty Ltd v Shop, Distributive and Allied Employees Association (2010) 205 IR 113 at [11]. The employer bodies in the 11 dioceses are established as corporate bodies under the Roman Catholic Church Trust Property Act 1936 (NSW). The trustees are created as bodies corporate for the purpose of holding on trust property of the Roman Catholic Church and have, in accordance with s 4(3), the following objects:
(3) The objects of a body corporate created by this Act include:
(a) the operation and conduct of educational, welfare and health institutions, organisations or other bodies, and
(b) the performance of all such acts, matters and things of any nature (which may include, without limiting the scope of this paragraph, borrowing money) as, in its opinion, are or may be for its benefit or for the benefit of the Church.
16. The various trustees who are the employers of teaching and other staff in the 11 dioceses and the dioceses in general can properly be regarded as engaged in a common enterprise in the provision of catholic education in New South Wales having regard to the following:
(a) The trustees are established for the purpose and having the object of holding property on trust for the use, benefit or purposes of the Roman Catholic Church in the state of New South Wales.
(b) The objects of the trustees include the operation of education, welfare and health institutions and performing other acts, matters or things for the benefit of the Roman Catholic Church.
(c) The funding for schools within the dioceses is received centrally from the Commonwealth and New South Wales government for the operation of schools across the state and distributed by the Church.
(d) The dioceses operate towards a common goal of the provision of catholic education to students in close collaboration with the Catholic Church and for the benefit and purposes of the Church.
(e) The 11 dioceses collectively devolve the bulk of Government relations to the Catholic Education Commission including financial, contractual, curriculum, education policy and representation.
(f) The dioceses operate in accordance with common curriculum requirements and a series of state-wide policies and programs produced by the Catholic Education Commission NSW.
(g) The Catholic Education Commission NSW performs a central leadership role the coordination and representation of catholic education across New South Wales and providing policy guidance and professional services to dioceses.
17. If the enterprise agreement proposed by the dioceses is not in fact a multi-enterprise agreement, the IEU is entitled to make application for a protected action ballot order under s 437(1) of the Act in relation to the agreement proposed by the employers for the purposes of s 437(1) of the Act. That is so, even if the IEU has also proposed the making of enterprise agreements with different scope: see, for example, Maritime Union of Australia v Maersk Crewing Australia Pty Ltd (2016) 257 IR 30 at [17].
18. Bargaining in relation to the agreement proposed by the employers has been ongoing since November 2016 and a notice of employee representational rights was issued in November 2016. The IEU has participated in numerous negotiations involving the CCER and directly with individual dioceses. In those circumstances, there can be no doubt that the IEU has been and is genuinely trying to reach agreement for the purposes of s 443(1)(b) of the Act.”
CCER Submissions
[43] The CCER submitted that:
“10. Sub-section 437(2) places a restriction on bargaining agents from applying for a protected action ballot order when the proposed agreement is a greenfields agreement or multi-enterprise agreement.
11. In HSU v Banyule Community Health Service & Ors 31 Vice President Watson had cause to consider an application for protected industrial action, in facts which bear some similarity to the current situation.
12. The HSU in Banyule had made three applications for protected action ballots, where separate logs of claims had been served on each of the separate employers and various negotiations had taken place with each employer. However, there was evidence that there had been communications and meetings between the Union and the employer representatives concerning a multi-enterprise agreement which would cover the same three employers.
13. His Honour considered that in considering the negotiations as a whole, he was not satisfied that the exclusion in section 437, of taking industrial in relation to a proposed multi-enterprise agreement, was avoided and he refused to approve the applications.
14. In these applications, the evidence does not disclose that there is a dispute in relation to anything other than terms that are to be contained in a proposed multi-enterprise agreement. In particular the terms of a dispute settlement procedure.
15. That there is no dispute as yet with respect to the coverage of the Proposed Agreement nor that the IEU sought at this stage to pursue any other single enterprise agreement, support for this is found in the statutory declaration of Carol Mathews filed with each application, in which she declares:
"3. The Union and employers have been unable to reach agreement over the content of the MEA. The Union therefore intends to pursue a separate enterprise agreement with the employer that is satisfactory to the Union."
16. For the above reason, the Commission will be satisfied that at this point in time that the proposed protected action will be in relation to the Proposed Agreement and therefore the applications should be refused.
CCER Further Submissions
[44] The CCER further submitted that:
“10. Should the applications not be referred to Full Bench, the IEU's submission that the Respondents may not make a multi-enterprise agreement should be rejected and the eleven applications should be dismissed as they offend ss 437(2A).
11. The IEU Submissions correctly identify the observation of Mason J in Softwood as the leading authority with respect to meaning of "common enterprise".
12. In applying the reasoning in Softwood, the IEU point to the legislative objective in the Roman Catholic Church Trust Property Act 1936 (the 'Trust Act') support of common purpose and the role of the Catholic Education Commission in terms of closeness of connection.
13. As to common purpose, in South Australian Health Commission and Others v Australian Liquor, Hospitality and Miscellaneous Workers Union 32 the Full Bench rejected a submission that 80 hospitals and health facilities established under statute were a common enterprise as they had a legislatively imposed common purpose, being "the provision of health serves to the public of South Australia". What flows from this decision, is that more is needed than a legislative objective to reach a finding that a group of employers are involved in a common enterprise and there is no evidence before the Commission to base such a conclusion.
14. Notwithstanding the above, ss 4(3)(b) of the Trust Act does not have the effect advanced by the IEU, i.e. that the sole purpose and/or objective of the trustees is the holding of property and the delivery of education solely for the benefit of the Roman Catholic Church. The ordinary and natural meaning of the words within this provision are that the various acts, including the delivery of education, is either for the benefit of each trustee on behalf of the diocese OR the Roman Catholic Church.
15. Turning to the role of the CEC, its' primary role is as a conduit for the provision of funding provided by governments. Contrary to the IEU submissions, the CEC does not set policies, governance or curriculum and is not involved in teacher accreditation or training.
16. To the extent that there is a requirement for uniformity between the provision of education by the Respondents, for example the content of curriculum and the expenditure of monies, this is dictated by government through bodies such as the New South Wales Education Standards Authority. In this respect, the Respondents are no different from the rest of schools delivering education in the state of New South Wales.
17. Apart from the regulatory requirements, the provision and delivery of education in each of the Respondents differs from each other. Other differences between the Respondents which may occur with respect to education include:
a) the design and delivery of religious education programmes;
b) the sourcing of non-government funding;
c) the basis upon which school fees are calculated; and
d) the way government funding is allocated within a diocese;
18. In addition to the above differences between the Dioceses, further evidence of the lack of close connection as envisaged in Softwood are:
a) Their separate registration and operation as a Teacher Accreditation Authority; and
b) The competition for enrolments of students to increase funding;
19. For the above reasons, the Commission will be satisfied that the Respondents do not have a common purpose nor do they have the closeness of connection necessary to find that that they constitute a "common enterprise" for the purposes of the Act.
The IEU’s Submissions in Reply
[45] In reply the IEU submitted that,
“6. The submissions of the CCER that the dioceses are not in a common enterprise cannot be accepted.
7. There does not appear to be any dispute in relation to the principles to be applied. The CCER accepts that the proper approach is that set out in Australian Softwood Forestry Pty Ltdv Attorney-General (NSW); Ex rel Corporate Affairs Commission (1981) 148 CLR 121. The CCER also refers to the decision in South Australian Health Commission v Australian, Liquor, Hospitality and Miscellaneous Workers’ Union (Print M3485, 12 July 1995). The decision does not assist the CCER.
8. The decision concerned 80 health providers. On the evidence, the Full Bench was able to conclude that “the hospitals and health facilities are in no different position to any other multiplicity of employers who happen to provide or offer the same service.” Given the commonality of operation of the dioceses of the Catholic Church and, in particular, their collective conduct in relation to financial, contractual, curriculum, education policy and representation, the present matter is readily distinguishable. The IEU does not rely simply upon the Roman Catholic Church Trust Property Act 1936.
9. The authorities emphasise that the focus of the inquiry is whether two employers have connected operations contributing to an overall purpose: Qantas Airways Limited v AMWU (Print S5768, 8 May 2000) at [29]-[32]. The contribution of the dioceses to a common overall purpose and operation is made clear at least by:
(a) The overall purpose of Catholic schools in pursuing and advancing the Catholic Church and its message and constituting the educational arm of the Catholic Church and acting for the benefit of the Catholic Church.
(b) The operation of the various dioceses, through the Catholic Education Commission, as a cooperative block for the purposes of negotiating, receiving and distributing government funding for schools.
(c) The operation of the Catholic Education Commission (and in future Catholic Schools NSW) as an Approved Systems Authority under the Australian EducationAct 2013 (Cth) with express purposes of receiving government funds and setting policy across all the dioceses.
(d) The role of the Catholic Education Commission in providing representation, coordination and leadership for systemic Catholic schools and providing advocacy and representation with government, other education institutions and the community.
(e) The adoption and implementation of common policies across the dioceses with respect to matters such as religious education, child protection, curriculum issues, delivery of vocational training and professional development for teachers.
10. The submissions of the CCER overstate the independent operation of the dioceses. For example, the CCER asserts that individual dioceses have some discretion with respect to setting of school fees or non-government funding. In relation to school fees, it is appropriate to note that school fees represent a minority of income derived from schools and that the dioceses adopt a common approach which is to keep fees to a minimum and that no family should be denied a Catholic education due to incapacity to pay.
11. The proposition that there is competition between dioceses for enrolments is also overstated. All Catholic primary schools give priority to children who live in the parish or attend the church of the parish within which the school is located and Catholic secondary schools give priority to children who attend a designated primary parish feeder school. This is consistent with Catholic schools operating as arm of the Catholic Church.”
Consideration
[46] In coming to this part of the decision about “common enterprise”, I have had regard to the following authorities:
a) Australian Softwood Forestry Pty Ltd v Attorney-General (NSW); Ex rel Corporate Affairs Commission 33 in which the often quoted paragraphs from Mason J appear. For there to be a common enterprise the relevant entities must “contribute to the overall purpose that unites them.”
b) SDA v McDonald’s Restaurants 34 where Lawson C, applying Australian Softwood, held that,
“[4] The nine named employers in the current application carry on businesses which are identical in character, and operated in an identical manner in which provide identical products which are priced identically. In all respects the operations of the businesses are carried out in a manner which is seamless to the consumer. In each case the businesses are mutually interdependent with McDonald’s Australia Ltd.”
c) Re Bakers Delight Holdings Ltd 35 (decided 7 months after McDonalds) where Ives DP was not satisfied that the Bakers Delight franchisor and 9 franchisees (not related bodies corporate) were engaged in a common enterprise36 because,
i. although the franchisees,
A. were identical in character,
B. operated in an identical manner,
C. provided identical products,
D. priced identically,
E. where the subject of significant (identical) controls by the franchisor
ii. there was no declared collective intent as between the franchisees,
iii. there was no interdependence between each franchisee,
iv. the franchisees still operated in the same market and competed against each other, and
v. there was no evidence that the franchisees shared operations or resources.
d) Yum Restaurants Australia Pty Ltd v Shop, Distributive and Allied Employees Association 37 which concerned whether the Pizza Hut franchisor and its franchisees had a common purpose that supported the modernisation of an enterprise award. Contrary to the Bakers Delight decision the Full Bench (which, interestingly included Ives DP) held that,
“We have no doubt that the operations of the Pizza Hut franchisees and the franchisor… are conducted as a common enterprise. They have a common purpose which can be described as the successful operation of Pizza Hut stores. In various ways they contribute to the purpose that unites them.”
[47] While the McDonalds and Pizza Hut decisions sit together they are not easy to reconcile with Bakers Delight.
[48] Having regard to the evidence, in the present matter I am satisfied that:
a) each of the Dioceses are:
i. substantially identical in character,
ii. operate in a substantially identical manner,
iii. provide substantially identical education services,
b) although schools in each Diocese are priced differently, they are priced with the same purpose (i.e. to make Catholic education available to as many Catholic children as possible),
c) although each Bishop is (to use a civil term) the Governor of their Diocese, they are the subject of significant (identical) controls through canon law and the supreme apostolic authority of the Bishop of Rome, 38
d) through the creation of the CEC, the wording of clause 8.1 of the Current Agreement (required by the Bishops and again pressed in the current round of bargaining) and other statements, like the Pastoral Letter (Exhibit 12, Annexure 1), the Bishops have declared a collective intent as between themselves in relation to Catholic education,
e) because the Dioceses (though the CEC) collectively negotiate with Governments for funds there is an interdependence between each Diocese,
f) the Dioceses do not operate in the same market. Nor do they compete against each other, and
g) there is evidence that the Diocese share resources.
[49] I am further satisfied that the Dioceses:
a) have a common purpose which can be described as the successful operation Catholic schools that provide high-quality education to young Australians as a major arm of the Church’s engagement with youth and in order to assist parents and parishes in their educational, evangelical and catechetical mission,
b) in various ways, contribute to the overall purpose that unites them,
c) have a vested interest in the other Dioceses also fulfilling this purpose so as not to “damage the brand” of Catholic education.
[50] The decision in HSU v Banyule Community Health Service & Ors 39 can be distinguished. It was a decision decided largely on the basis “of submissions from the bar table and there was no evidence submitted by either side that [went] comprehensively to the various communications and negotiation that … occurred.”40 It the present matter I have had the benefit of substantial evidence, all of which I have had regard to, in coming to this decision.
I also distinguish the facts in the present matter from those in South Australian Health Commission and Others v Australian Liquor, Hospitality and Miscellaneous Workers Union 41. It would appear that, in that decision, the Full Bench was not directed to and did not consider Australian Softwood Forestry Pty Ltd v Attorney-General (NSW); Ex rel Corporate Affairs Commission. Further the decision does not, in any great detail, apply the facts the accepted understanding of “common enterprise” 42.
Without further explanation of how the Full Bench came to its conclusion I decline to follow it. The evidence in the present matter readily lends itself to a conclusion that the Dioceses are engaged in a common enterprise.
Consequently, for the reasons above, it is apparent that, although the CCER/Dioceses have only ever proposed a multi-enterprise agreement their pursuit of the same has been misplaced. The Dioceses are engaged in a common enterprise. Therefore, it follows that they are “single interest employers” (something they themselves professed to be only 17 months ago) and any resulting agreement will be a “single enterprise agreement” (as it was in 2014).
The fact that the CCER/Dioceses have been under the impression any resulting agreement would be a multi-enterprise agreement is not determinative of the issue. What they want (a multi-enterprise agreement) does not triumph over what the evidence in this matter dictates they can have (a single enterprise agreement).
In reality what the CCER/Dioceses have always proposed (the only thing they could propose) was a single enterprise agreement. Consequently, the IEU is entitled to make an application for a PABO.
Has there been a notification time in relation to the proposed enterprise agreement?
[51] For the reasons that follow, the answer to this question is “yes”.
The IEU’s Submissions
[52] The applicant submitted that:
“19. If, contrary to the above submission, the Commission determines that the agreement proposed by the employers is a multi-enterprise agreement for the purposes of s 172(3) of the Act, the IEU nonetheless may apply for a protected action ballot order in relation to its proposal to bargain for separate agreements for each of the dioceses in accordance with s 437(1) of the Act. Two questions may arise: (1) whether there is a “notification time”; and (2) whether the IEU is genuinely trying to reach an agreement.
(a) Notification Time
20. Section 437(2A) provides that, for an application to be made for a protected action ballot order, there must be a “notification time” in relation to the proposed enterprise agreement. In this context, the “proposed agreement” refers to an agreement a bargaining representative is proposing to make: Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia (2014) 241 IR 35 at [46]-[48]; Skilled Offshore Pty Ltd v Australian Manufacturing Workers’ Union (2015) 254 IR 133 at [29]; Maritime Union of Australia v Maersk Crewing Australia Pty Ltd (2016) 257 IR 30 at [15].
21. The requirement imposed by s 437(2A) does not require that there be precise identity between the scope of the agreement proposed by an employer and the scope proposed by another bargaining representative. In Maritime Union of Australia v Maersk Crewing Australia Pty Ltd (2016) 257 IR 30, the Full Bench accepted (at [56]) that the subsection does not require that there to have been a notification time for the particular enterprise agreement proposed by a PABO applicant. It is sufficient that there be a notification time “in relation to” the agreement proposed by the PABO applicant.
22. However, in Swinburne University of Technology v National Tertiary Education Industry Union (2016) 263 IR 173, the Full Bench found that the decision in Maersk did not necessarily provide guidance in circumstances of a proposed multi-enterprise agreement. The Full Bench concluded (at [37]) that s 437(2A) is not to be interpreted on the basis that a notification time for a proposed multi-enterprise agreement could be treated as being “in relation to” a proposed single-enterprise agreement. The IEU reserves its position in relation to the correctness of the Full Bench decision.
23. If the agreement proposed to cover all 11 dioceses is in fact a multi-enterprise agreement, it is accepted that the IEU cannot rely upon the initiation of bargaining for that agreement to provide the “notification time” for proposed separate agreements in each dioceses if the decision in the Swinburne University matter is correct. However, in Swinburne University, the Full Bench accepted (at [39]):
For completeness, we also recognise the possibility that an employer may propose and initiate bargaining in relation to a multi-enterprise agreement, and simultaneously agree to bargain (expressly or by inference from its conduct) in relation to a counter-proposal for a single-enterprise agreement, so that all matters are dealt with globally in the same negotiation. In that factual scenario, it might be argued that a notification time in relation to the proposed single-enterprise agreement exists for the purpose of s 437(2A) and a protected action ballot order application could be made. However that was not the factual situation in the matter before us and we therefore do not need to consider it further.
24. In this matter, the notice of employee representational rights issued in November 2016 referred to a proposed agreement to apply across all Catholic Systemic Schools in NSW and the ACT purportedly as a multi-enterprise agreement. However, the conduct of the parties permits an inference that there has been bargaining in relation to a counter-proposal for single enterprise agreements. In particular, the IEU refers to the following evidence:
(a) By letter dated 4 November 2016, the IEU set out its claims on behalf of members in Catholic systemic schools and identified that it would be raising issues in relation to work intensification issues with Diocesan Directors in the first instance.
(b) By letter dated 16 November 2016, the CCER requested that the IEU nominate areas of discussion for each dioceses and what outcome the IEU was seeking in respect of each claim.
(c) Throughout the period from December 2016 to February 2017, representatives of the IEU met with each dioceses to discuss the claims at the diocesan offices around the state and in the ACT.
(d) In February 2017, the IEU wrote to each diocese in relation to matters which had been referred by the CCER to the dioceses for further discussion seeking responses from individual dioceses.
(e) On 18 March 2017, the Council of the IEU passed a resolution supporting individual enterprise agreements with each of the 11 dioceses and informed members of the decision.
(f) Although the CCER expressed concern in relation to the stated intention of the IEU to bargain for separate enterprise agreements, the IEU continued to meet with individual dioceses in relation to its claims in the bargaining.
25. In those circumstances, the IEU has been bargaining both centrally with the CCER and, with the knowledge of the CCER, involved in direct negotiation with individual dioceses in relation to its claims. The IEU has made clear since at least March 2017 that it proposes to bargain for separate agreements with each diocese if a common agreement cannot be reached. An inference of the type contemplated by the Full Bench in Swinburne University at [39] is available.”
CCER Submissions
[53] The CCER submitted that:
“17. The CCER further submits that the 437(2) of the Act prevents the IEU from applying for protected action ballot orders as there has not been the requisite notification time in relation to the eleven separate proposed agreements.
18. This provision in the context of multi-enterprise agreements and then a subsequent claim for single enterprise agreements was considered by a Full Bench of the Commission in Swinburne University of Technology v National Tertiary Education Industry Union.
19. The employer in Swinburne had issued a notice of representational rights to employees identifying a multi-enterprise that they wished to bargain for and the Union made application for protected action ballots for single enterprise agreements that they wished to bargain for. At first instance, Commissioner Bissett approved the application and this was appealed by the employer.
20. The Full Bench after reviewing the statutory scheme and the previous Full Bench decisions, ultimately found in relation to s 437(2A):
[37) We have therefore come to the conclusion that s.437(2A) is not to be interpreted on the basis that a notification time for a proposed multi-enterprise agreement could be treated as being "in relation to" a proposed single-enterprise agreement. While it might be going too far to say that a multi-enterprise agreement and a single-enterprise agreement are "clean different things", to borrow the language of Charles I on the scaffold, the incompatibility of a number of the statutory requirements which apply to these two types of agreements means, we consider, that a relationship of the requisite proximity under s.437(2A) cannot arise. In this case, Swinburne had never agreed to bargain and had never initiated bargaining for a single-enterprise agreement of any description with respect to its PAVE teaching staff, and that fact meant that the NTEU was not permitted by s.437(2A) to apply for a protected action ballot order with respect to its proposed single-enterprise agreement. Its application in that connection therefore should have been dismissed, and the Decision and Order in determining otherwise were made in error.”
[54] The CCER further submitted that:
“20. The CCER submits that the IEU has misconstrued the finding in Swinburne University concerning the operation of ss 437(2A). The Full Bench in the passage cited by the IEU envisaged a hypothetical situation in which the notification period engaged for the purposes of negotiating a multi-enterprise agreement and a counter proposal for a single-enterprise agreement occurs simultaneously.
21.The evidence does not disclose any agreement by the Respondents nor the CCER to negotiate any number of single-enterprise agreement(s) at the time the NERR's were issued on 22 November 2016, nor at any other later stage. Accordingly, there has not been an operative notification time for the eleven (nor any) single-enterprise agreements as required by ss 437(2A).”
Consideration
[55] Section 437(2A) provides that,
“Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.”
[56] Section 173(2) provides that,
“The notification time for a proposed enterprise agreement is the time when:
(a) the employer agrees to bargain, or initiates bargaining for the agreement….”
[57] Swinburne University of Technology v National Tertiary Education Industry Union was decided in the context of the negotiation of a multi-enterprise agreement and then a subsequent claim for single enterprise agreements. That is not the context here. I have already decided that, at all times, what the parties were able to negotiate (and in fact were negotiating) was a single enterprise agreement (for a number of employers who are single interest employers). Accordingly, Swinburne can be distinguished from the facts before me.
[58] In the present matter the Notices of Employee Representational Rights provided that,
“Trustees of the Roman Catholic Church as trustees for the [each Dioceses names was inserted here] gives notice that it is bargaining in relation to an enterprise agreement (NSW and ACT Catholic Systemic Schools Multi-Enterprise Agreement 2017) which is proposed to cover employees that are employed in teaching, support and operational, and school based information communication and technology positions, in any recognised primary and secondary Catholic Systemic School in NSW and the ACT.”
(emphasis added)
[59] The Notice refers to “an enterprise agreement”. It does not refer to “a multi enterprise agreement”. It does not refer to a “single enterprise agreement”. The Dioceses are giving notice “in relation to an enterprise agreement.”
[60] It is not determinative of the issue that the Notices used the phrase “multi-enterprise agreement” in the proposed name of the future agreement. The name of an agreement and or the scope of it can change in the course of bargaining. The fact that the name or scope of the agreement at the end of bargaining is different from the name and or scope at the beginning does not invalidate the Notice.
[61] In any case I am not satisfied that the IEU ever exclusively agreed to a multi enterprise agreement. Through their ongoing separate discussions with the Dioceses they evinced a preparedness to have 11 x single enterprise agreements if needs be. In a sense this was a counter-proposal by the IEU.
[62] In this matter the Notices complied with s.173(2). Consequently, there was a notification time in relation to the proposed enterprise agreement as required by s.437(2A).
[63] Through a combination of the fact that:
a) the proposed agreement is not a multi-enterprise agreement,
b) there has been a notification time in relation to the proposed enterprise agreement, and
c) the matters which are common ground between the parties,
the Commission, as presently constituted, is satisfied that applications for the PABOs were made pursuant to s.437 of the FW Act.
Has the applicant been, and is, the applicant genuinely trying to reach an agreement with the employers of the employees who are to be balloted?
[64] For the reasons that follow, the answer to this question is “yes”.
The IEU’s Submissions
[65] The applicant submitted that:
“26. In addition, the Commission must be satisfied that the IEU has been genuinely trying to reach “an agreement” for the purposes of s 443(1)(b). Whether an applicant “has been, and is, genuinely trying to reach an agreement” is a question of fact to be decided having regard to all of the facts and circumstances of the particular case: Esso Australia Pty Ltd v Australian Manufacturing Workers’ Union (2015) 247 IR 5 at [57]. Consideration may be given, for example, to whether an applicant has approached the employer and informed the employer of the general ambit of that for which agreement is sought: JJ Richards & Sons Pty Ltd v Fair Work Australia (2012) 201 FCR 297 at [58].
27. It is not clear to the IEU whether and, if so, upon what basis it is suggested that the IEU is not genuinely trying to reach “an agreement”. There are ample grounds for the Commission to be satisfied that the IEU is genuinely trying to reach an agreement, including:
(a) The IEU articulated claims to the CCER acting as bargaining representative and each of the dioceses directly in comprehensive form.
(b) The IEU has met on numerous occasions with representatives of the CCER as well as directly with the dioceses to progress the claims made on behalf of its members.
(c) The CCER and the individual dioceses have provided responses to the claims advanced by the IEU and advanced claims of their own.
28. There is no basis for a submission that the IEU has not been genuinely trying to reach an agreement. For these reasons, the Commission can be satisfied that the requirement in s 443(1)(b) of the Act is met.”
CCER Submissions
[66] The CCER submitted that:
“22. The IEU bears the onus of establishing that they are genuinely trying to reach agreement. In relation to what needs to be established, Flick J in the Federal Full Court decision of Richards & Sons Pty Ltd v Fair Work Australia stated:
"[58] It is ultimately concluded that s 443(1)(b) is to be construed such that Fair Work Australia cannot reach a state of satisfaction that an "applicant ...is ... genuinely trying to reach an agreement with the employer" unless:
● an applicant has approached the employer and informed the employer of the general ambit of that for which agreement is sought; and
● the employer has foreshadowed -even in the most general of terms- its attitude as to the proposed agreement.
More may be required. Much may well depend upon the factual scenario in which the terms of s 443(1)(b) are to be applied. But such a minimum statement of that which is required is sufficient to dispose of the present Application."
23. The CCER submits that the IEU has not met this onus as there is no evidence that the IEU has put forward to the CCER nor any of the Respondents prior to at the time that they filed these eleven applications that they were seeking single-enterprise agreements. Even if such an approach could be inferred, there is no evidence that neither the CCER nor any of the Respondents have foreshadowed their opposition to such a proposal.
Consideration
[67] As observed by Deputy President Gostencnik in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union v Bitzer Australia Pty Ltd T/A Buffalo Trident, 43
“[7] In Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing And Kindred Industries Union known as The Australian Manufacturing Workers’ Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; and The Australian Workers’ Union, 44 a Full Bench of the Fair Work Commission (Commission) reviewed relevant Full Bench and Federal Court of Australia decisions concerning the question of whether a bargaining representative has been and is genuinely trying to reach an agreement with the employer of the employees who are to be balloted. Relevantly for present purposes, extracts of the decision in Esso are reproduced below:
[33] A number of Full Bench decisions have considered the meaning of ‘genuinely trying to reach an agreement’ in s.443(1)(b) . . .
[34] In Total Marine Services Pty Ltd v Maritime Union of Australia (Total Marine) the Full Bench upheld an appeal from a decision to grant an application for a protected action ballot. The Full Bench held that the member at first instance had erred in concluding that the applicant had genuinely tried to reach an agreement within the meaning of s.443(1)(b) in circumstances where certain claims were ‘put to one side’; the negotiations involved limited face to face meetings and limited articulation of many of the claims; many items were only set out in a list of headings, being neither explained nor discussed; and no wage claim was specified. In the course of its decision the Full Bench expressed the following views about s.443(1)(b):
“[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.
[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.”
[35] For our part, for reasons we articulate later, we agree with the observations in paragraph [31] and the first three sentences of paragraph [32] of Total Marine, set out above. We note that the observations which follow the first three sentences in paragraph [32] are obiter and although we do not consider that they should be understood as attempting to establish any binding decision rule, nonetheless they are, with respect, somewhat inconsistent with the earlier expressed proposition (with which we agree) that it is not useful to articulate any alternative test or criteria to the words of s.443(1)(b). We note that similar reservations were expressed by the majority of the Full Bench in JJ Richards and Sons Pty Ltd v TWU (JJ Richards No.1) and by the Full Bench in Farstad Shipping (Indian Pacific) Pty Ltd v MUA (Farstad)
....
[47] The Full Bench decisions to which we have referred were all decided prior to the decision of the Full Court of the Federal Court in J.J Richards Sons Pty Ltd and Another v Fair Work Australia and Another. The applicants in that matter had contended that s.443 should be construed in a way which conditioned its operation upon bargaining having commenced. The Full Court rejected this proposition and held that a protected action ballot order under s. 443(1) of the Act may be made even though bargaining between an employer and employees has not commenced. Jessup J held, at [30]-[31]:
“However, notwithstanding that perception, and notwithstanding my disagreement, in one important respect, with the reasons of the Full Bench, it is not possible to construe s 443(1)(b) as the applicants would propose. I agree with the Full Bench that the contrast between the references to bargaining in Pt 2-4 of the Act, and the words actually used in s 443(1)(b) is striking. I accept that, under s 15AA of the Acts Interpretation Act 1901 (Cth), an interpretation should be favoured which would best achieve the purpose or object of the legislation. That is no basis, however, for the introduction of additional requirements or conditions which might have been, but which have not been, enacted. There is every reason to perceive in s 443(1)(b) a departure from the scheme of regulated bargaining set out by Pt 2-4 of the Act and, in that sense, there is a certain tension with the object referred to in s 3(f). Such a perception, however, would relate to the consistency of the implementation of legislative policy. It would contribute little or nothing to the task of construction which confronted the Full Bench.
In sum, the applicants’ case really amounts to no more than the proposition that the legislature ought, consistent with the structure and policy of the Act as a whole, have conditioned the power to make an order under s 443 upon the circumstance of bargaining having commenced. However, that was a step which the legislature did not take, and it is a step which FWA could not take. There was no jurisdictional error in the protected action ballot order made by FWA on 16 February 2011 and confirmed by the Full Bench on 1 June 2011.”
[48] As to the question of whether a bargaining representative has been and is genuinely trying to reach an agreement, Flick J said:
“It is ultimately concluded that s 443(1)(b) is to be construed such that Fair Work Australia cannot reach a state of satisfaction that an “applicant … is … genuinely trying to reach an agreement with the employer” unless:
● an applicant has approached the employer and informed the employer of the general ambit of that for which agreement is sought; and
● the employer has foreshadowed — even in the most general of terms — its attitude as to the proposed agreement.
More may be required. Much may well depend upon the factual scenario in which the terms of s 443(1)(b) are to be applied. But such a minimum statement of that which is required is sufficient to dispose of the present Application. Contrary to the submissions advanced on behalf of the Applicants, the terms of s 443(1)(b) do not require:
● bargaining to have commenced within the meaning of and for the purposes of s 173, found within Pt 2-4 of the Fair Work Act.
So much, it is concluded, follows from the natural and ordinary meaning of the phrase “trying to reach an agreement … ”. It is difficult to conclude that any person can try to reach an agreement with another in the absence of a disclosure of that for which consensus is sought. One person may wish to reach an agreement with another. But, until the general content of the proposed agreement is disclosed, it cannot be said that he has even attempted to reach an agreement. Until disclosed, it is not known whether the other person will readily embrace the proposed agreement or shun it or (perhaps) embrace the concept of an agreement but wish to vary one or other of its terms. Until disclosed, the person seeking agreement has not even tried to solicit the response of the other. Unless the disclosure is genuinely with a view to reaching agreement, it could well be said that the attempt to reach an agreement falls short of a person even trying to reach agreement. The addition of the word “genuine” — on one approach to construction — perhaps adds little. But the addition of that term serves to emphasise the importance of a person actually trying to solicit agreement. Until a proposed agreement has been disclosed to the prospective parties, and a response solicited, an applicant has not even tried to reach agreement — let alone genuinely tried to reach agreement.”
[49] Tracey J agreed with Jessup and Flick JJ that on its proper construction s.443(1) could not be construed in the manner contended by the applicants:
“There is simply no warrant to read into the subsection words of limitation which do not appear. The legislature has required that FWA must make a protected action ballot order if the two conditions prescribed by s.443(1) are satisfied even if bargaining between an employer and employees has not commenced.” 45
[68] I agree with Deputy President Gostencnik 46 that Esso is a correct statement of the law so far as it applies to the consideration of the circumstances set out in s.443(1)(b).
The foundation underpinning the CCER’s submissions that I cannot be satisfied that the IEU has been trying to reach an agreement with it, is that, it was submitted, there is no evidence that the IEU has put forward that they are seeking 11 x single-enterprise agreements.
On the contrary the evidence supports a finding that, while having discussions centrally about an agreement to cover all employers, the IEU has always been prepared and canvassed single enterprise agreements.
The evidence in this matter supports a finding, and I so find, that:
a) the IEU has articulated claims to the CCER acting as bargaining representative and to each of the Dioceses directly in comprehensive form,
b) the IEU has met on numerous occasions with representatives of the CCER as well as directly with the Dioceses to progress the claims made on behalf of its members, and
c) the CCER and the individual Dioceses have provided responses to the claims advanced by the IEU and advanced claims of their own.
[69] I find that both in relation to the central discussions and the individual discussions the IEU has:
a) not put claims to one side,
b) met many times,
c) articulated their many claims, and
d) disclosed that for which consensus is sought.
[70] Consequently, there can be no doubt that:
a) the IEU has approached the employers (through their bargaining agent the CCER and directly) and informed the employers (through their bargaining agent the CCER and directly) of the general ambit of that for which agreement is sought (in fact the evidence demonstrates that the IEU have done more than this); and
b) the employers/CCER have foreshadowed (even in the most general of terms – but, in fact in very specific terms) their attitude as to the proposed agreement/s.
[71] For these reasons, the Commission as presently constituted, is satisfied that the IEU has been, and is, genuinely trying to reach an agreement with the employers
Conclusion
[72] For the reasons above the Commission, as presently constituted, is satisfied that the requirements of subsection 443(1) of the FW Act have been met, that is to say, I am satisfied that,
a) an application has been made under section 437 of the FW Act; and
b) the IEU has been, and is, genuinely trying to reach an agreement with the employers.
[73] Accordingly, Orders must be made.
Orders [PR595743, PR595142, PR595145, PR595146, PR595147, PR595148, PR595149, PR595150 PR595151, PR595152, PR595143], will be issued concurrently with this decision.
COMMISSIONER
Appearances:
M. Gibian of counsel on behalf of the Independent Education Union of Australia.
D. O’Sullivan of counsel on behalf of the Catholic Commission for Employment Relations.
Hearing details:
2017.
Sydney:
31 August.
1 s.438(1) of the FW Act.
2 s.440 of the FW Act.
3 s.437(1) of the FW Act.
4 s.437(3) of the FW Act.
5 s.437(3) of the FW Act.
6 s.437(2) of the FW Act.
7 s.437(2A) of the FW Act.
8 s.443(1)(b) of the FW Act.
9 Because the Statutory Declarations made by Ms Matthews in support of the applications were identical in form, in this Decision, the Exhibits 1 - 11 are referred to the “the Matthews Statutory Declaration” rather than to the individual Statutory Declaration applicable to a particular Diocese.
10 [2015] FWCA 6133, PR571571.
11 Matthews Statutory Declaration, Annexure A.
12 Ibid.
13 Matthews Statutory Declaration, Annexure B.
14 s.438(1) of the FW Act.
15 Matthews Statutory Declaration, Annexure C.
16 Matthews Statutory Declaration, Annexure G.
17 Matthews Statutory Declaration, Annexure H.
18 Matthews Statutory Declaration, Annexure I.
19 Exhibit 14.
20 Annexure JQ1.
21 Annexure JQ2.
22 Annexure JQ8.
23 s.172(2) of the FW Act.
24 s.172(3) of the FW Act.
25 s.172(4) of the FW Act.
26 s.172(5) of the FW Act.
27 Forsyth et al, Navigating the Fair Work Laws (1st Ed, 2010), 83.
28 PR550337.
29 [2015] FWCA 6133, PR571571.
30 s.247(4)(b).
31 [2014] FWC 597.
32 Print M3485.
33 (1981) 148 CLR 121.
34 PR915681 (March 2002).
35 (2002) 119 IR 20.
36 Although, he opined, the franchisor and each individual franchisee might have been.
37 (2010) 205 IR 113.
38 The Code of Canon Law, canon 749, 752.
39 [2014] FWC 597.
40 [2014] FWC 597, [3].
41 Print M3485.
42 Ibid.
43 [2016] FWC 1531.
44 [2015] FWCFB 210.
45 Ibid at [33]-[36], [47]-[49].
46 [2016] FWC 1531, [8].
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