Australian Education Union
[2025] FWC 884
•1 APRIL 2025
| [2025] FWC 884 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.248—Single interest employer authorisation
Australian Education Union
(B2025/220)
| DEPUTY PRESIDENT BELL | MELBOURNE, 1 APRIL 2025 |
Application for a single interest employer authorisation regarding a proposed multi - enterprise agreement for Victorian TAFE institute employers – authorisation made.
An application has been made by the Australian Education Union (AEU), through its Victorian Branch, under s 248 of the Fair Work Act 2009 (Cth) (Act) for a ‘single interest employer authorisation’ (SIEA). The authorisation is sought in respect of bargaining for a proposed single interest employer agreement (the proposed agreement) that will cover certain specified employees across 12 ‘Technical and Further Education’ institutes (TAFEs) in Victoria.
A materially identical authorisation was granted by me on 28 November 2023[1] that covered the same class of employees and same employers, which expired on 28 November 2024. By s 249(4) of the Act, an authorisation ceases to be in operation 12 months after it was made unless an enterprise agreement to which the authorisation relates is made (which it was not) or an extension under s 252 is given (an extension was not sought).
A fresh application has been made in light of the fact the previous authorisation expired. The application is made by consent. I record briefly that, for essentially the same reasons I approved the previous authorisation, it is appropriate to approve the current application and I will do so.
The employers are party to a multi-enterprise agreement that has passed its nominal expiry date, namely the Victorian TAFE Teaching Staff Agreement 2018[2] (the current agreement). The current agreement was approved on 12 October 2018, commenced operating from 19 October 2018, and has a nominal expiry date of 11 October 2022.[3] The current agreement continues to apply to the respondent employers and employees. The AEU and the National Tertiary Education Union (NTEU) are covered by the current agreement.
The Victorian TAFE Association (VTA) advised the Commission in their capacity as the authorised bargaining representative for the respondent employers, that the employers consent to the making of the application sought by the AEU.
Having received no request to be heard, and having received clarification from the AEU on 26 March 2025 regarding the proposed employees to be covered by the SIEA, the parties were advised I intended to determine the matter on the papers, which I now do.
Section 249 of the Act sets out the circumstances in which the Commission “must” make a single interest employer authorisation in relation to a proposed enterprise agreement.
Section 248(1) and (2), and 249(1)(a) – application formalities
For the purposes of s 249(1)(a), an application for the authorisation has been made, namely by the AEU. The application was made by the AEU in its capacity as a bargaining representative of an employee who will be covered by the proposed agreement (s 248(1)(b)).
The employees and employers specified in the application for the purpose of s 248(2)(a) – (b) are those listed in Annexure B to the AEU’s application, as clarified by the AEU in their email of 26 March 2026, and replicated in Attachment 1 to this decision.
The application states that the employers to be covered have not nominated a person to make applications under the Act if the authorisation is made (s 248(2)(c)), however the employers have nominated VTA to be their bargaining representative. The employers, through the VTA, also indicate consent for an authorisation consistent with the terms of the previous authorisation, which noted the VTA as a person nominated by the employers to make applications pursuant to the Act. On this basis, I will again note the VTA as the person nominated by the employers to make applications pursuant to the Act for the fresh authorisation.
Section 249(1)(b) - coverage requirements
I am satisfied that at least some of the employees who will be covered by the proposed agreement are represented by the AEU.
Section 249(1)(b)(ii)
I am satisfied that the employers and the bargaining representatives of the employees of the respondent employers have had the opportunity to express their views, if any, on the authorisation. Pursuant to directions issued the application and directions were served on the NTEU and a number of individuals on the basis they might be ‘bargaining representatives’ within the meaning of s 249(1)(b)(ii).
Of the cohort served, the NTEU expressed views to the Commission, advising they support the AEU’s application.
Section 249(1)(b)(iv) – whether the employers consent
The application was not made by the employers, hence sections 249(1)(b)(iii) and (1A) are not applicable.
As to s 249(1)(b)(iv), that provision requires satisfaction that each employer has consented to the application or is covered by subsection 249(1B). I am satisfied that the employers have consented to the application.
The requirements of s 249(1B) – which deal with asserting whether a majority employees want to bargain – are not applicable and, therefore the requirements of s 249(1C) – (1D) also do not apply.
Section 249(1)(b)(v) and (3)-(3AB) – common interest employer requirements
Section 249(1)(b)(v) directs attention to the satisfaction of the requirements of subsections 249(2) or (3). Subsection 249(2) – which deals with franchisees – is not applicable.
Subsection 249(3), which is applicable, has two limbs – a “common interest” limb and a “public interest” limb. Dealing with the first of those, s 249(3)(a) requires satisfaction of the employers having clearly identifiable common interests. Section 249(3A) provides for matters that “may” be relevant to determining whether there is a common interest.
Section 249(3AB) establishes a presumption that the requirements of s 249(3) – both limbs – are met “unless the contrary is proved”. An element of the presumption in s 249(3AB) is that it only applies to relevant employers who employ “50 employees or more” at the time the application was made. While s 249(3AC) sets out how such employees are to be calculated for the purpose of that section, there was no dispute that each of the respondent employers employed “at least” that number and I am satisfied that is the case.
There is no material before me that would displace the presumption in s 249(3AB) that applies and, to the contrary, the parties relied upon the presumption. Accordingly, I am satisfied of the requirements of both limbs of s 249(3).
There was no matter drawn to my attention that indicates it would be contrary to the public interest to make the authorisation, even in the absence of the presumption in s 249(3AB). Observing the double-negative in s 249(3)(b), and as a found in the previous SIEA made, I remain satisfied of the requirement that making the authorisation is “not” contrary to the public interest.
I am satisfied that the requirements of s 249(1)(b)(v) and (3) are met.
Section 249(1)(b)(vi) and (1AA) – whether business activities are reasonably comparable
Section 249(1)(b)(vi) provides that if (which is the case here) the requirements of s 249(3) are met, then I must be satisfied that the “operations and business activities” of each of the respondent employers are “reasonably comparable” with the other employers to be covered by the proposed agreement.
Section 249(1AA) sets out a presumption that the above requirement is satisfied “unless the contrary is proved”. There is no material before me that would displace the presumption in s 249(1AA) on the basis that “the contrary is proved”. Accordingly, I am satisfied of the requirements of s 249(1)(b)(vi).
As with s 249(3AB), the presumption is s 249(1AA) only applies to employers employing 50 or more employees. For the reasons provided above, I am satisfied of the matters in s 249(1AA) and that the requirements of s 249(1)(b)(vi) are met.
Disposition
As I am satisfied the requirements in s 249, as relevantly set out above, are met and that the exclusion in s 249A is not applicable, it follows that an authorisation must be made and I will do so.
Section 250(1) provides than an authorisation 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.
The matters relating to s 250(1)(a) – (c) have been referred to above. At the time of the application and this decision, there were no matters prescribed by the procedural rules for the purpose of s 250(1)(d). Sections 250(2) – (4) provide for circumstances where an authorisation may be made for only some of the employers or employees specified in the application sought – none of those matters are relevant to the application before me.
By s 249(4)(a), an authorisation comes into operation on the day in which it is made, which is the date of this decision.
The authorisation[4] giving effect to this decision will be issued separately.
DEPUTY PRESIDENT
Hearing details:
Matter decided on the papers.
Attachment 1 – employers and employees to be covered
A.The employers that will be covered by the proposed agreement are:
a. Bendigo Kangan Institute;
b. Box Hill Institute;
c. Chisholm Institute;
d. Gippsland Institute of Technical and Further Education
e. Gordon Institute of TAFE;
f. Goulburn Ovens Institute of TAFE;
g. Holmesglen Institute;
h. Melbourne Polytechnic;
i. South West Institute of TAFE;
j. Sunraysia Institute of TAFE;
k. William Angliss Institute of TAFE;
l. Wodonga Institute of TAFE.
B.The employees to be covered by the proposed enterprise agreement are:
(a) The employees of the employers who teach, manage, coordinate and/or develop accredited and non-accredited programs that are:
i. Vocational education and training programs leading to qualifications recognised at AQF levels 1 to 6 (Advanced Diploma) and level 8 (VET Graduate Certificate and VET Graduate Diploma);
ii. English Language Intensive Courses for Overseas Students (ELICOS) and Teaching English to Speakers of Other Languages programs (TESOL);
iii. Languages Other Than English programs (LOTE);
iv. English language, literacy and numeracy programs;
v. English language teaching in migrant education programs;
vi. Community and adult education programs not leading to qualifications recognised by the AQF;
vii. Foundation studies or bridging courses where the program or course is preparatory to or articulates with programs of teaching leading to higher education qualifications recognised within the AQF;
viii. Victorian Certificate of Applied Learning (VCAL); and/or
ix. Victorian Certificate of Education (VCE);
(b) but not including the following employees of the employers:
i. an employee of an Employer for whom the majority of their teaching, management, coordination and/or development work is in undergraduate and/or postgraduate programs leading to the conferring of degrees or other higher education qualifications recognised within the AQF levels 6 (Associate Degree) to 10, other than in respect of vocational education and training programs leading to qualifications recognised at AQF level 6 (Advanced Diploma) and level 8 (VET Graduate Certificate and VET Graduate Diploma); or
(ii) an employee of an Employer who holds a position that is classified as, or equivalent to, a CEO position or Executive position pursuant to Ministerial Directions or Orders issued under the Education and Training Reform Act 2006 (Vic); or
(iii) Industrial Skills Instructors.
[1] See [2023] FWC 3034 and PR767224.
[2] AE500437
[3] [2018] FWCA 6341
[4] PR785659.
Printed by authority of the Commonwealth Government Printer
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