CPSU, the Community and Public Sector Union
[2024] FWC 1402
•3 JUNE 2024
| [2024] FWC 1402 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.248—Single interest employer authorisation
CPSU, the Community and Public Sector Union
(B2024/516)
| DEPUTY PRESIDENT HAMPTON | SYDNEY, 3 JUNE 2024 |
Application for a proposed single interest employer authorisation regarding proposed enterprise agreement for Victorian Government arts agencies.
This matter concerns an application by the CPSU, the Community and Public Sector Union (CPSU) under s.248 of the Fair Work Act 2009 (Cth) (FW Act) for a single interest employer authorisation. The authorisation is sought in respect of bargaining for a proposed multi-enterprise agreement to cover non-executive employees employed by 5 named employers. In particular, it seeks authorisation for the commencement of bargaining with the following Victorian Government Arts Agencies who operate principally in the arts and creative industries sector (respondent employers):
1.Australian Centre for the Moving Image (ABN 37 375 237 227);
2.Council of Trustees of the National Gallery of Victoria (t/a National Gallery of Victoria) (ABN 77 884 986 472);
3.Film Victoria (t/a VicScreen) (ABN 30 214 952 770);
4.Library Board of Victoria (t/a State Library of Victoria) (ABN 73 190 237 854); and
5.Museums Board of Victoria (t/a Museums Victoria) (ABN 63 640 679 155).
Each of the respondent employers is funded by the State of Victoria to support their public purpose set out in the relevant State legislation establishing the entity. Further, these employers must perform their functions subject to direction and control of the relevant Minister.
I observe for completeness that the list of employers does not include VicScreen, which might otherwise be considered a relevant Victorian Government arts agency. The application contends that VicScreen is a creative and economic screen development agency with no responsibility for management of a physical cultural institution, and accordingly, has operating requirements distinct from the other agencies included in this matter.
The class of employees to be covered by the authorisation, and who are intended to be covered by the proposed enterprise agreement, is all non-executive employees employed by the (respondent) employers.
Each of the respondent employers have agreed to bargain together and support the making of the authorisation in the terms sought.
Given the absence of any factual disputes and any request for a hearing to be conducted, the Commission has determined this matter based upon the application, the statement of facts, and the written submissions and other materials provided by the parties.
For the reasons set out below, I have decided to grant the application and make the authorisation in the terms sought.
The statutory framework
The objects of Part 2-4 — Enterprise agreements of the FW Act are set out in s.171 as follows:
171Objects of this Part
The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and
(b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:
(i) makingbargaining orders; and
(ii) dealing with disputes where the bargaining representatives request assistance; and
(iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay.
Since its enactment, Part 2-4 of the FW Act has included, in Division 10, a scheme for single interest employer authorisations in connection with bargaining. That scheme has been the subject of significant amendment by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (SJBP Act).
Sections 248 to 250 of the FW Act now provide:
“248 Single interest employer authorisations
(1) The following may apply to the FWC for an authorisation (a single interest employer authorisation) under section 249 in relation to a proposed enterprise agreement that will cover two or more employers:
(a) those employers;
(b) a bargaining representative of an employee who will be covered by the agreement.
(2) The application must specify the following:
(a) the employers that will be covered by the agreement;
(b) the employees who will be covered by the agreement;
(c) the person (if any) nominated by the employers to make applications under this Act if the authorisation is made.
249 When the FWC must make a single interest employer authorisation
Single interest employer authorisation
(1) The FWC must make a single interest employer authorisation in relation to a proposed enterprise agreement if:
(a) an application for the authorisation has been made; and
(b) the FWC is satisfied that:
(i) at least some of the employees that will be covered by the agreement are represented by an employee organisation; and
(ii) the employers and the bargaining representatives of the employees of those employers have had the opportunity to express to the FWC their views (if any) on the authorisation; and
(iii) if the application was made by 2 or more employers under paragraph 248(1)(a)—the requirements of subsection (1A) are met; and
(iv) if the application was made by a bargaining representative under paragraph 248(1)(b)—each employer either has consented to the application or is covered by subsection (1B); and
(v) the requirements of either subsection (2) or (3) (which deal with franchisees and common interest employers) are met; and
(vi) if the requirements of subsection (3) are met—the operations and business activities of each of those employers are reasonably comparable with those of the other employers that will be covered by the agreement.
(1AA) If:
(a) the application for the authorisation was made by a bargaining representative under paragraph 248(1)(b); and
(b) an employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;
it is presumed that the operations and business activities of the employer are reasonably comparable with those of the other employers that will be covered by the agreement, unless the contrary is proved.
Additional requirements for application by employers
(1A) The requirements of this subsection are met if:
(a) the employers that will be covered by the agreement have agreed to bargain together; and
(b) no person coerced, or threatened to coerce, any of the employers to agree to bargain together.
Additional requirements for application by bargaining representative
(1B) An employer is covered by this subsection if:
(a) the employer employed at least 20 employees at the time that the application for the authorisation was made; and
(b) the employer has not made an application for a single interest employer authorisation that has not yet been decided in relation to the employees that will be covered by the agreement; and
(c) the employer is not named in a single interest employer authorisation or supported bargaining authorisation in relation to the employees that will be covered by the agreement; and
(d) a majority of the employees who are employed by the employer at a time determined by the FWC and who will be covered by the agreement want to bargain for the agreement; and
(e) subsection (1D) does not apply to the employer.
(1C) For the purposes of paragraph (1B)(d), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.
(1D) This subsection applies to an employer if:
(a) the employer and the employees of the employer that will be covered by the agreement are covered by an enterprise agreement that has not passed its nominal expiry date at the time that the FWC will make the authorisation; or
(b) the employer and an employee organisation that is entitled to represent the industrial interests of one or more of the employees of the employer that will be covered by the agreement have agreed in writing to bargain for a proposed single‑enterprise agreement that would cover the employer and those employees or substantially the same group of those employees.
Franchisees
(2) The requirements of this subsection are met if the employers carry on similar business activities under the same franchise and are:
(a) franchisees of the same franchisor; or
(b) related bodies corporate of the same franchisor; or
(c) any combination of the above.
Common interest employers
(3) The requirements of this subsection are met if:
(a) the employers have clearly identifiable common interests; and
(b) it is not contrary to the public interest to make the authorisation.
(3A) For the purposes of paragraph (3)(a), matters that may be relevant to determining whether the employers have a common interest include the following:
(a) geographical location;
(b) regulatory regime;
(c) the nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises.
(3AB) If:
(a) the application for the authorisation was made by a bargaining representative under paragraph 248(1)(b); and
(b) an employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;
it is presumed that the requirements of subsection (3) are met in relation to that employer, unless the contrary is proved.
Calculating number of employees
(3AC) For the purposes of calculating the number of employees referred to in paragraph (1AA)(b), (1B)(a) or (3AB)(b):
(a) employee has its ordinary meaning; and
(b) subject to paragraph (c), all employees employed by the employer at the time that the application for the authorisation was made are to be counted; and
(c) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer; and
(d) associated entities of the employer are taken to be one entity.
Operation of authorisation
(4) The authorisation:
(a) comes into operation on the day on which it is made; and
(b) ceases to be in operation at the earlier of the following:
(i) at the same time as the enterprise agreement to which the authorisation relates is made;
(ii) 12 months after the day on which the authorisation is made or, if the period is extended under section 252, at the end of that period.
249A Restriction on making single interest employer authorisations
The FWC must not make a single interest employer authorisation in relation to a proposed enterprise agreement if the agreement would cover employees in relation to general building and construction work.
250 What a single interest employer authorisation must specify
What authorisation must specify
(1) A single interest employer authorisation in relation to a proposed enterprise agreement must specify the following:
(a) the employers that will be covered by the agreement;
(b) the employees who will be covered by the agreement;
(c) the person (if any) nominated by the employers to make applications under this Act if the authorisation is made;
(d) any other matter prescribed by the procedural rules.
Authorisation may relate to only some of employers or employees
(2) If the FWC is satisfied of the matters specified in subsection 249(2) or (3) (which deal with franchisees and common interest employers) in relation to only some of the employers that will be covered by the agreement, the FWC may make a single interest employer authorisation specifying those employers and their employees only.
(3) The FWC may make a single interest employer authorisation that does not specify one or more employers specified in an application for the authorisation, and the employees (the relevant employees) of those employers specified in that application, if the FWC is satisfied that:
(a) the employers are bargaining in good faith for a proposed enterprise agreement that will cover the employers and the relevant employees, or substantially the same group of the relevant employees; and
(b) the employers and the relevant employees have a history of effectively bargaining in relation to one or more enterprise agreements that have covered the employers and the relevant employees, or substantially the same group of the relevant employees; and
(c) on the day that the FWC will make the authorisation, less than 9 months have passed since the most recent nominal expiry date of an agreement referred to in paragraph (b).
(4) If the effect of subsection (3) is that no employers would be specified in the authorisation, the FWC may refuse the application for the authorisation.”
The Explanatory Memorandum to the SJBP Act stated that the purpose of the amendments leading to these revised provisions in the following terms:
“1006. Part 21 of Schedule 1 to the Bill would amend Division 10 of Part 2-4 of the FW Act to remove unnecessary limits on access to single interest employer authorisations and simplify the process for obtaining them, and facilitating bargaining by:
· removing the requirement for two or more employers with common interests who are not franchisees to obtain a Ministerial declaration before applying a single interest employer authorisation;
· providing for employee bargaining representatives to apply for a single interest employer authorisation to cover two or more employers, subject to majority support of the relevant employees;
· permitting employers and employee bargaining representatives to apply to vary a single interest employer authorisation to add or remove the name of an employer from the authorisation, subject to meeting specified requirements; and
· inserting new Subdivision AD—Variation of single interest employer agreement to add employer and employees, into Division 7 of Part 2-4 of the FW Act to permit employers and employee organisations to apply to the FWC for approval of a variation to extend coverage of an existing single interest employer agreement to a new employer and its employees, subject to meeting specified requirements.”[1]
… …
“1066. New subsection 249(1) would delineate the requirements of which the FWC must be satisfied before making a single interest employer authorisation depending on whether the application for the authorisation was made by the employer and its employees, or an employee organisation. It would also clarify the requirements of which the FWC must be satisfied depending on whether the single interest employer authorisation is to operate in respect of two or more common interest employers or franchisees. The term ‘common interest employers’ would be introduced by these amendments and used to identify those employers who may be included in a single interest employer authorisation but who are not franchisees.”[2]
The requirements for making an authorisation under s.249 of the FW Act vary, depending upon the nature of the applicant and the circumstances of the employers involved. In this case, the applicant is an employee bargaining representative. This means that the “additional” requirements of s.249(1B) apply and the terms of s.249(1A) and consequential provisions do not.
The respondent employers each employ more than 50 employees at the time that the application was made. This means that the ‘rebuttable presumptions’ concerning the common interest and pubic interest requirements of s.249(3), and the reasonably comparability of operations and business activities of the employers under s.249(1)(b)(vi), apply. I observe that I would in any event be satisfied about those matters based upon the common materials before the Commission.
In deciding to make the authorisation, I am satisfied that all the relevant requirements under ss.249 and 249A of the FW Act have been met. I briefly deal with each in turn.
Consideration
Was a valid application made?
The application was made by the CPSU and it is a bargaining representative for employees who will be covered by the proposed agreement. The application specifies the required matters; observing that there is no requirement to include the person nominated by the employers to make applications where there is no such nomination.[3] The Commission is not aware that any such nomination has been made. I am satisfied that the requirements under s.248 of the FW Act and related criteria have been met.
Are at least some of the employees who will be covered by the Agreement represented by an employee organisation?
I am satisfied that at least some of the employees that will be covered by the agreement are represented by an employee organisation.[4] Each of the Applicant Employers employ one or more persons who are a member of, and are represented by, the CPSU.[5] Further, the statement of facts notes that the Media, Entertainment and Arts Alliance is entitled to represent the industrial interests of some employees at the Centre for the moving Image.
Have the Parties had the opportunity to express their views?
I am satisfied that the CPSU and the respondent employers have had the opportunity to express their views on the proposed authorisation.[6] This included allowing for a supplementary opportunity for each of the respondent employers to formally indicate their position on the application. Their position of consent was confirmed to the Commission on their behalf by correspondence dated 28 May 2024.
The relevant parties have also provided submissions confirming their views, and all have supported the authorisation being made.
I observe for completeness that the Victorian Acting Minister for Industrial Relations, although not a party to the application, has confirmed support for the making of the authorisation.
Have the respondent employers consented to the application or is s.249(1B) met?
I am satisfied that the employers that will be covered by the agreement have consented to the application.[7] As a result, ss.249(1B) does not apply.
Have the requirements of either ss.249(2) or 249(3) been met?
It is s.249(3) of the FW Act that applies here. That is, the respondent employers must meet the common interest and the ‘not contrary to the public interest’ requirements.
In Application by UWU, AEU and IEU,[8] the Full Bench said the following in relation to the expression ‘common interests’ in s 243(1)(b)(ii) in connection with applications for supported bargaining authorisations:
“…the expression ‘common interests’ used in s 243(1)(b)(ii) in connection with the employers the subject of an authorisation application is one of wide import, and on its ordinary meaning extends to any joint, shared, related or like characteristics, qualities, undertakings or concerns as between the relevant employers. The diversity of the non-exhaustive list of ‘examples’ of common interests in s 243(2) gives contextual support to the breadth of meaning which we assign to the expression. The common interests must be ‘clearly identifiable’, that is, plainly discernible or recognisable, but need not be self-evident.”
I am satisfied that the respondent employers have clearly identifiable common interests.[9] Amongst other matters, the following factors that apply to each employer confirm that finding:
· Establishment as a public entity under the Public Administration Act 2004 (Vic).
· Funding by the State of Victoria to support their public purpose set out in the relevant State legislation establishing the entity.
· The performance of their functions is subject to direction and control of the relevant Minister.
· Common fundamental purposes.
· Subject to the Victorian Government wages policy.
These circumstances provide the basis for the common interests that satisfy the immediate test.
I am also satisfied that it is not contrary to the public interest to make the authorisation.[10]
Accordingly, I am satisfied that the requirements under s.249(3) of the FW Act have also been met.
Do the Applicant Employers have reasonably comparable operations and business activities?
As the requirements of s.249(3) have been met, s.249(1)(b)(vi) of the FW Act requires that the operations and business activities of each of the respondent employers are reasonably comparable with those of the other employers that will be covered by the Agreement. The material canvassed earlier in this decision strongly supports the proposition that this is so.
General building and construction work
Section 251A of the FW Act prevents an authorisation of this kind being made if it were to cover employees in the general building and construction industry. That term is relevantly defined in s.23B to mean:
“23B Meaning of general building and construction work
(1) Work is general building and construction work if:
(a) the work is done, onsite, by an employee in the industry of:
(i) general building and construction within the meaning of paragraph 4.3(a) of the Building and Construction General On‑site Award 2020 as in force at the applicable time; or
(ii) civil construction within the meaning of paragraph 4.3(b) of the Building and Construction General On‑site Award 2020 as in force at the applicable time; and
(b) the work is not any of the following:
(ii) work in the industry of metal and engineering construction within the meaning of paragraph 4.3(c) of the Building and Construction General On‑site Award 2020 as in force at the applicable time;
(iii) work in manufacturing and associated industries and occupations within the meaning of clause 4.8 of the Manufacturing and Associated Industries and Occupations Award 2020 as in force at the applicable time;
(iv) the work of an employee who is covered by the Joinery and Building Trades Award 2020, as in force at the applicable time, in relation to the work;
(v)work in the industry of electrical services, within the meaning of clause 4.3 of the Electrical, Electronic and Communications Contracting Award 2022 as in force at the applicable time, provided by electrical, electronics and communications contractors and their employees;
(vi) work that is plumbing, or fire sprinkler fitting, within the meaning of clause 4.2 of the Plumbing and Fire Sprinklers Award 2020 as in force at the applicable time;
(vii) work in the black coal mining industry within the meaning of clause 4.2 of the Black Coal Mining Industry Award 2020 as in force at the applicable time;
(viii) work in the mining industry within the meaning of clause 4.2 of the Mining Industry Award 2020 as in force at the applicable time;
(ix) work in the quarrying industry within the meaning of clause 4.3 of the Cement, Lime and Quarrying Award 2020 as in force at the applicable time;
(x) work in the concrete products industry within the meaning of clause 4.2 of the Concrete Products Award 2020 as in force at the applicable time;
(xi) work in the premixed concrete industry within the meaning of clause 4.2 of the Premixed Concrete Award 2020 as in force at the applicable time;
(xii) work in connection with the installation, major modernisation, servicing, repair or maintenance of lifts and escalators, or air‑conditioning or ventilation;
(xiii) work in the asphalt industry within the meaning of clause 4.2 of the Asphalt Industry Award 2020 as in force at the applicable time;
(xiv) work, in that part of the industry of civil construction described in subparagraph 4.3(b)(i) of the Building and Construction General On‑site Award 2020 as in force at the applicable time, that is the construction, repair, maintenance or demolition of power houses or other structures that use eligible renewable energy sources (within the meaning of section 17 of the Renewable Energy (Electricity) Act 2000) to generate electricity.
(2) The applicable time is the start of the day before this section commences.
The Supplementary Explanatory Memorandum to the SJBP Act[11] stated:
“76. Amendment 128 would insert new Part 23A dealing with excluded work.
77.Item 651A would amend section 12 by inserting signpost definitions for “applicable time”, defined by reference to subsection 23B(2), and “general building and construction work”, defined by reference to subsection 23B(1). In this document, the term ‘excluded work’ is used interchangeably with the defined term "general building and construction work” to aid comprehension.
78.Item 651B would insert a new section 23B, setting out the meaning of “general building and construction work” and “applicable time”.
79.New subsection 23B(1) would define “general building and construction work” as work done onsite by an employee of an employer that is in the industry of general building and construction within the meaning of paragraph 4.3(a) of the Building and Construction General Onsite Award 2020 as in force at the applicable time. Subparagraph 23(B)(1)(b) would provide for a number of exclusions by reference to modern awards in force at the applicable time.
80.New subsection 23B(2) would define “applicable time” as the start of the day before the section commences.
81.While existing provisions of the FW Act refer to the “building and construction industry”, for example subsection 123(3) and paragraphs 534(1)(e) and 789(1)(e), the expression “general building and construction work” used in new Part 23A would not be intended to have the same meaning as these existing provisions.”[12]
The National Gallery of Victoria has 11 employees employed as carpenters, painters, electricians and plumbers. They are deployed in the delivery of new exhibitions and the maintenance of all gallery spaces.
Museums Victoria has 4 employees engaged as Exhibition Craftspersons, who are licenced tradespersons who also support the construction of new exhibitions.
The parties contend that these employees are not within the industry of general building and construction.
The definition in s.23B of the FW Act requires in this case[13] consideration of the notion of relevant on-site work and the scope of the Building and Construction General On-site Award 2020 (BCG On-site Award). The exclusions in sss.23B(1)(b) are not applicable. Accordingly, the relevant question here is whether the employees concerned perform work, onsite, in the industry of general building and construction as defined in the BCG On-site Award. That term is relevantly defined[14] as follows in clause 4:
“4.1This industry award covers employers throughout Australia in the on-site building, engineering and civil construction industry and their employees in the classifications within Schedule A — Classification Definitions to the exclusion of any other modern award.
4.2For the purpose of clause 4.1, on-site building, engineering and civil construction industry means the industry of general building and construction, civil construction and metal and engineering construction, in all cases undertaken on-site.
4.3 For the purposes of clause 4.2:
(a) general building and construction means:
(i)the construction, alteration, extension, restoration, repair, demolition or dismantling of buildings, structures or works that form, or are to form, part of land, whether or not the buildings, structures or works are permanent and maintenance undertaken by employees of employers covered by clause 4.1 of such buildings, structures or works;
(ii)site clearance, earth-moving, excavation, site restoration, landscaping and the provision of car parks and other access works associated with the activities within clause 4.3(a)(i) ; and
(iii)the installation in any building, structure or works of fittings and services;
… …”
The definitions of civil construction and metal and engineering construction in the BCG On-site Award are not relevant here.
I do not consider that the employees concerned perform work on-site in the general building and construction industry. Firstly, the employees concerned are performing work in the arts and entertainment industry. Their work and functions are directly linked to the core functions of their employer and the substantial charter of their work is in that industry. In that regard, the work concerned is also not involved with the construction, alteration, extension, restoration, repair, demolition or dismantling of buildings, structures or works that form, or are to form, part of land and any ‘maintenance’ involved is not being undertaken by employees who are (otherwise) in the building and construction industry. It concerns only work on exhibitions and exhibitions or gallery spaces and I would not consider that this involved the installation of fittings and services as comprehended by subclause 4.3(a)(iii) of the BCG On-site Award. Secondly, even if the work otherwise fell within the definition, it must be performed on-site. On-site in the present context refers to the notion of a building and construction site. The context in which the employees perform their work is not ‘on-site’ for present purposes.
I am satisfied that the Agreement will not cover employees in relation to general building and construction work. This meets the requirements of s.251A of the FW Act.
Other matters
The proposed authorisation specifies each of the matters required by s.250(1) of the FW Act.
The findings made apply to all of the respondent employers and for the purposes of s.250(2) of the FW Act I am satisfied that each should be specified in the authorisation.
The circumstances contemplated in ss.250(3) and (4) do not apply.
Conclusions
Given my satisfaction with all of the relevant requirements, I am obliged to issue the authorisation under s.249(1) of the FW Act.
The authorisation has been issued separately in PR775443.
The Commission stands ready to assist the parties with the bargaining for the proposed multi-employer agreement should that be sought, such as under a s.240 application or a joint request to conduct a collaborative approaches process to utilise interest-based bargaining.
DEPUTY PRESIDENT
Hearing details:
Determined on the papers.
Final written submissions:
28 May 2024.
[1] Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, Revised Explanatory Memorandum at [1006].
[2] Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, Revised Explanatory Memorandum at [1066].
[3] Section 248(2)(c) of the FW Act – is expressed to apply “if any”.
[4] Section 249(1)(b)(i) of the FW Act.
[5] Statement of Agreed Facts at [2].
[6] Section 249(1)(b)(ii) of the FW Act.
[7] Section 249(1)(b)(iv) of the FW Act.
[8] [2023] FWCFB 176 at [34] as applied to a single interest employer authorisation application in Independent Education Union of Australia v Catholic Education Western Australia limited and others[2023] FWCFB 1177 at [31].
[9] Section 249(3)(a) of the FW Act.
[10] Section 249(3)(b).
[11] Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 House of Representatives Supplementary Explanatory Memorandum.
[12] Subsequent amendments to the Bill to expand the meaning of “general building and construction work” to include work in the civil construction industry, due to the overlapping nature of the industries, did not disturb the apparent purpose of the exclusions and the definitions – see Senate Supplementary Explanatory Memorandum at 20 and 129.
[13] There would be no suggestion that coverage of civil construction activities is relevant here.
[14] As at the applicable time.
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