Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ARA Fire Protection Services Pty Ltd

[2025] FWC 2266

[2025] FWC 2266

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.251 - Application for a variation of a single interest employer authorisation

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v

ARA Fire Protection Services Pty Ltd

(B2025/1184)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 6 AUGUST 2025

Application to vary single interest employer authorisation in B2025/736

1. What this decision is about

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU or Applicant) has applied to the Commission under s.251 of the Fair Work Act 2009 (Act) to vary a single interest employer authorisation (SIEA). The Authorisation[1] was issued by the Commission on 23 June 2025 under s.248 of the Act and included 6 employers who all carry on an enterprise for the installation, fitting, maintenance and testing of fire alarm systems and sprinkler systems in South Australia and are represented by the National Fire Industry Association.

1. The application sought to add ARA Fire Protection Services Pty Ltd (new employer) to the Authorisation under s.251(3) and (4).

1. The parties who are presently subject to the Authorisation are negotiating a multi-enterprise agreement (proposed new agreement) which would apply to all these employers. The CEPU is a bargaining representative for the proposed new agreement and represents employees of the new employer.

1. The new employer also operates in the fire system and sprinkler testing, installation and maintenance industry located within South Australia, and does not oppose the application lodged by the CEPU.

1. In the lead up to the determination of the matter, I directed the new employer to confirm its position on the application and provided the opportunity for the employers currently covered by the Authorisation to express their view on the application directly with the Commission. The Commission has not been advised of any such concerns, and subsequently the matter was dealt with on the papers.

2. Having considered the application, today I issued an Order[2] varying the Authorisation as sought. My reasons for doing so are briefly set out below.

1. The application to add the employer

1. Sections 251(3), (4), (4A), (5), (6), (7), and (8) and s.251(A) of the Act provide as follows:

“Variation to add employer

(3)The following may apply to the FWC for a variation of a single interest employer authorisation to add the name of an employer (the new employer) that is not specified in the authorisation to the authorisation:

(a)the new employer;

(b)a person who is a bargaining representative:

(i)for the proposed enterprise agreement to which the authorisation relates; and

(ii)          of an employee of the new employer.

(4)       The FWC must vary the authorisation to add the new employer’s name if:

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

(b)       the FWC is satisfied that:

(i)the employers specified in the authorisation and the bargaining representatives of the employees of those employers have had an opportunity to express to the FWC their views (if any) on the application; and

(ii)if the application was made by the new employer under paragraph (3)(a)—no person coerced, or threatened to coerce, the new employer to make the application; and

(iii)if the application was made by a bargaining representative under paragraph (3)(b)—the requirements of subsection (5) are met; and

(iv)the requirements of subsection 249(2) or (3) (which deal with franchisees and common interest employers) would continue to be met if the new employer’s name were added; and

(v)if the requirements of subsection 249(3) would continue to be met if the new employer’s name were added—the operations and business activities of the new employer are reasonably comparable with those of the employers specified in the authorisation.

(4A)     If:

(a)the application for approval of the variation was made by a bargaining representative under paragraph (3)(b) of this section; and

(b)the new employer employed 50 employees or more at the time that the application was made; and

(c)the requirements of subsection 249(2) do not apply to the new employer;

then the following matters are presumed, unless the contrary is proved:

(d)that the requirements of subsection 249(3) would continue to be met if the new employer's name were added;

(e)that, for the purposes of subparagraph (4)(b)(v) of this section, the operations and business activities of the new employer are reasonably comparable with those of the other employers that are specified in the authorisation.

Additional requirements for application by bargaining representative

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

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

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

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

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

(e)subsection (7) does not apply to the employer.

(6) For the purposes of paragraph (5)(d), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.

(7)      This subsection applies to an employer if:

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

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

Employers and employees that are already bargaining

(8)Despite subsection (4), the FWC may refuse to vary the authorisation if the FWC is satisfied that:

(a)the new employer is bargaining in good faith for a proposed enterprise agreement that will cover the new employer and the employees of the new employer that will be covered by the agreement, or substantially the same group of those employees; and

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

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

… …

(251A)            Restriction on variation of single interest employer authorisation

Despite subsection 251(4), the FWC must not vary a single interest employer authorisation if, as a result of the variation, the proposed enterprise agreement to which the authorisation relates would cover employees in relation to general building and construction work.”

1. I observe that subsections (4A), (5), (5A), (6) and (7) apply where the application is made by an employee bargaining representative and are relevant here.

1. I briefly confirm the basis of my satisfaction with the relevant requirements below.

1. The CEPU is entitled to bring this application, and it has been made in accordance with the Act. The new employer is not presently specified in the Authorisation. This meets the requirements of s.251(3)(b) and s.251(4)(a) of the Act.

1. The existing employers and the bargaining representatives of the employees of those employers have had an opportunity to express their views to the Commission. This meets the requirements of s.251(4)(b)(i) of the Act.

1. The requirements in s.251(4)(b) also call up certain statutory requirements for the making of a SIEA in s.249 of the Act. The immediately relevant provisions are:

“Common interest employers

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

(a)       the employers have clearly identifiable common interests; and
(b)       it is not contrary to the public interest to make the authorisation.

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

(a)       geographical location;
(b)       regulatory regime;

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

1. The application for approval of the variation was made by a bargaining representative under s.251(3)(b), the new employer employed at least 50 employees at the time the application was made,[3] and the requirements of s.249(2) are not applicable to the new employer.[4] Therefore, the requirements in s.251(4A) of the Act are met and the following matters are presumed unless the contrary is proven:

• The requirements of s.249(3) continue to be met if the new employer’s name were added; and

• For the purposes of s.251(4)(b)(v), the operations and business activities of the new employer are reasonably comparable with those of the other employers that are specified in the authorisation.

1. I would in any event have been satisfied about these matters based upon the materials before the Commission.

1. The application was made by a bargaining representative under s.251(3)(b). As a result, the application must meet the requirements of s.251(5) of the Act. The new employer employed at least 20 employees at the time the application for the variation was made, the new employer has not made an application for a single interest employer authorisation that has not yet been decided, nor are they named in a SIEA or supported bargaining authorisation in relation to the employees that will be covered by the agreement. Further, a majority of the employees employed by ARA Fire Protection Services want to bargain for the agreement. The CEPU confirms that there are 9 employees that would be covered by the agreement, and a petition supporting the commencement of bargaining with the new employer has been signed by 8 of those employees. I accept that the petition represents the views of the relevant employees. In addition, s.251(7) does not apply as the existing enterprise agreement, which applies to the new employer and the relevant employees, has passed its nominal expiry date. On this basis, all of the requirements set out in s.251(5) are satisfied. This meets the requirements of s.251(4)(b)(iii) of the Act.

1. As to the existence of clearly identifiable common interests, the material before the Commission confirms that the new employer and the existing employers have these common interests and the common interest requirements would continue to be met if the new employer were added. The factors that support this finding include:

   ·The new employer and existing employers operate within the fire system and sprinkler testing, installation and maintenance industry.

   ·The new employer operates in the same broad geographic area, and under the same regulatory environment as the current employers.

   ·The new employer operates a similar enterprise under comparable terms and conditions of employment to the existing employers currently covered by the SIEA.

   ·The relevance of the factors cited in the Decision[5] granting the Authorisation to support the common interest between the parties.

1. I am satisfied that these are clearly identifiable common interests that are relevant to whether the new employer should be subject to the Authorisation and bargaining collectively with the existing employers.[6] I am also satisfied that it is not contrary to the public interest for the variation to the Authorisation to be made. Adding the new employer to the Authorisation is consistent with the objects of the Act,[7] and nothing has been suggested or is apparent that would make the proposed variation contrary to the public interest. This meets the requirements of s.251(4)(b)(iv).

1. I am also satisfied that the operations and business activities of the new employer are reasonably comparable with the existing employers. This meets the requirements of s.251(4)(b)(v) of the Act.

1. The new employer is not currently bargaining for a proposed enterprise agreement that would cover any of their relevant employees. Section 251(8) does not apply to provide a basis to refuse the variation.

1. The addition of the new employer to the Authorisation would not result in the proposed enterprise covering any employees in general building or construction work. This meets the requirements of s.251A of the Act.[8]

1. Accordingly, I was satisfied that all of the requirements for making a variation to add the new employer had been met and the Commission was then obliged by the Act to grant the application.

1. Conclusions and the order made

1. Being satisfied that all of the requirements for making the variation sought to the Authorisation had been met, an order[9] confirming the variation, is being issued by the Commission in conjunction with this decision.

1. The existing employers are set out in the Authorisation. The order varies the Authorisation to confirm the different coverage of the Authorisation now determined by the Commission.

DEPUTY PRESIDENT

Hearing details:

Determined on the papers.

[1] PR788154.

[2] PR790330.

[3] Publicly claiming to employ more than 550 staff nationally.

[4] Section 249(2) of the Act, which is referenced in s.251(4A)(c), applies to franchise operators and is not relevant in this matter.

[5] PR788153 at [16].

[6] See the discussion of a related provision in The Association of Professional Engineers, Scientists and Managers, Australia v Great Southern Energy Pty Ltd T/A Delta Coal and Others[2024] FWCFB 253 at [399].

[7] Sections 3 and 171 of the Act. See generally Australian Municipal, Administrative, Clerical and Services Union v Central Goldfields Shirs Counsil, Ararat Rural City Council[2024] FWCFB 444 at [69] to [80].

[8] See the discussion of this aspect at [25 -26] of the Decision approving the SIEA. This applies to the new employer.

[9] PR790330.

Printed by authority of the Commonwealth Government Printer

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