Lutheran Church of Australia Queensland District; St John's Lutheran Church Kingaroy; St John's Lutheran Church Bundaberg T/A St John's Lutheran Primary School Bundaberg; Peace Lutheran Church Gatton
[2009] FWA 975
•5 NOVEMBER 2009
[2009] FWA 975 |
|
DECISION |
Fair Work Act 2009
s.248 - Application for a single interest employer authorisation
(B2009/10961)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 5 NOVEMBER 2009 |
Summary: Ministerial declaration that two or more employers may bargain together – application to FWA for authorisation following declaration – restriction on FWA’s functions - preconditions to FWA making authorisation.
[1] On 30 October 2009, Lutheran Church of Australia Queensland District trading as Lutheran Education Queensland (“Lutheran Education Queensland”) made an application to Fair Work Australia under s.248(1) of the Fair Work Act 2009 (“the FW Act”) for a single interest employer authorisation (following a declaration by the Minister having been made under s.247 of the Act, the details of which are discussed below).
[2] The effect of the authorisation as sought is to allow two or more single interest employers (who are not franchisees of the same franchisor) to bargain together in relation to a proposed enterprise agreement.
[3] Lutheran Education Queensland made its application in its own right and as the representative of three other employers who will be covered by the proposed enterprise agreement. The four employers that are seeking to bargain together are the:
a) Lutheran Church of Australia Queensland District trading as Lutheran Education Queensland; and
b) St John’s Lutheran Church Bundaberg trading as St John’s Lutheran Primary School Bundaberg; and
c) St John’s Lutheran Church Kingaroy trading as St John’s Lutheran Primary School Kingaroy; and
d) Peace Lutheran Church Gatton trading as Peace Lutheran Primary School Gatton.
[4] I pause to note that on 21 September 2009 the above named employers (that is, before making application to Fair Work Australia on the above terms) sought a declaration from the Minister for Employment and Workplace Relations (“the Minister”) that they may bargain together for an enterprise agreement.
[5] The Act preserves a role for FWA in its own right to authorise a single interest employer authorisation but only in circumstances where the applicant employers are franchisees of the same franchisor. This is the effect of the operation of s.249(1)(c) of the FW Act in combination with s.249(2) of the FW Act. In all other respects, FWA can only make a single interest employer authorisation upon the Minister having declared at first instance that the specified employers may bargain together for an enterprise agreement.
[6] Section 247(1) of the FW Act makes provision for such an application to be made to the Minister for a declaration. The declaration may be made under s.247(3) of the FW Act, with the effect that two or more employers may agree to bargain together for an enterprise agreement.
[7] The relevant provisions read as follows:
“(1) Two or more employers that will be covered by a proposed enterprise agreement may apply to the Minister for a declaration under subsection (3).
[…]
Declaration by the Minister
(3) If an application is made under subsection (1), the Minister may declare, in writing, that the relevant employers may bargain together for the agreement.”
[8] Section 247(4) of the FW Act sets out the matters the Minister must take into account in making such a determination. These matters are:
“ (a) the history of bargaining of each of the relevant employers, including whether they have previously bargained together;
(b) 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;
(c) whether the relevant employers are governed by a common regulatory regime;
(d) whether it would be more appropriate for each of the relevant employers to make a separate enterprise agreement with its employees;
(e) the extent to which the relevant employers operate collaboratively rather than competitively;
(f) whether the relevant employers are substantially funded, directly or indirectly, by the Commonwealth, a State or a Territory;
(g) any other matter the Minister considers relevant.”
[9] On 23 October 2009 the Minister corresponded with the Executive Director of Lutheran Education Queensland on behalf of the above named employers. The purpose of that correspondence was to notify the employers and their representative that she had considered the requirements of the FW Act and now declared that the four previously cited employers “(to the extent that they are national system employers within the meaning of the Act) are allowed to bargain together for an enterprise agreement.”
[10] That correspondence expressly stated that it served as the declaration as sought by the employers under s.247(4) of the FW Act and notwithstanding the declaration, the employers were required under s.248 of the Act “to apply to Fair Work Australia for a single interest employer authorisation before bargaining for an enterprise agreement can commence.”
[11] The above named employers have now made the application for a single interest authorisation that is now before me. I now turn to consider that application. Section 248 of the Act reads as follows:
“(1) Two or more employers may apply to FWA for an authorisation (a single interest employer authorisation) under section 249 in relation to a proposed enterprise agreement.
Note: The effect of a single interest employer authorisation is that the employers are single interest employers in relation to the agreement (see paragraph 172(5)(c)).
(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.”
[12] For the purposes of s.248(2)(a) of the FW Act, the application has specified the four employers that will be covered by the agreement, and these employers have been cited above.
[13] For the purposes of s.248(2)(b) of the FW Act, the application has specified the employees to be covered by the agreement. They are described as being “all present employees who are employed by the employers and covered by the Lutheran Church of Australia Queensland District, Schools Department Certified Agreement 2004 (CA55 of 2005), excluding Principals, Business Managers and other executive staff.”
[14] For the purposes of s.248(2)(c) of the FW Act, the application nominates the Executive Director of Lutheran Education Queensland, Mrs Sue Kloeden as the authorised person to make applications to Fair Work Australia.
[15] Because this application does not concern an application by franchisees, s.249 of the FW Act reads relevantly as follows:
“(1) FWA 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) FWA is satisfied that:
(i) the employers that will be covered by the agreement have agreed to bargain together; and
(ii) no person coerced, or threatened to coerce, any of the employers to agree to bargain together; and
(c) the requirements of either subsection (2) (which deals with franchisees) or (3) (which deals with employers that may bargain together for a proposed enterprise agreement) are met.”
[…]
Employers that may bargain together for the agreement
(3) The requirements of this subsection are met if FWA is satisfied that all of the employers are specified in a declaration made under section 247 in relation to the agreement.
[16] For the purposes of s.249(1)(a) of the FW Act, the application for the single interest employer authorisation has been made on the terms set out above.
[17] For the purposes of s.249(1)(b)(i) of the FW Act, the application has been made by the four employers on the basis that they have agreed to bargain together, as evidenced in the consenting correspondence that accompanied the application.
[18] For the purposes of s.249(1)(b)(ii) of the FW Act, it is also evident from the accompanying correspondence that none of the employers have been “coerced, or threatened to coerce, any of the employers to agree to bargain together”. I also have previous knowledge of the relationships between the employers by virtue of earlier, related proceedings in which all these matters were canvassed.
[19] For the purposes of s.249(1)(c) of the FW Act, I note that the requirements of s.249(3) of the FW Act have been met for reason that I am satisfied that “all of the employers are specified in [the] declaration made under s.247 of the Act in relation to the agreement.” The employers who are specified in the declaration are those employers whose representative made this application on their behalf, as set out above.
[20] Section 249(1) of the FW Act states that Fair Work Australia “must” make the single interest authorisation employer authorisation if it is satisfied of the various factual preconditions required to be established under s.249 of the FW Act. Those factual preconditions have been met in each instance, so I must now make the authorisation for which application has been made.
[21] Section 250 of the Act reads as follows:
“(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.”
[22] The single issue authorisation will specify, for purposes of s.250(1)(a) of the FW Act that the employers that will be covered by the agreement will be:
a) Lutheran Church of Australia Queensland District trading as Lutheran Education Queensland; and
b) St John’s Lutheran Church Bundaberg trading as St John’s Lutheran Primary School Bundaberg; and
c) St John’s Lutheran Church Kingaroy trading as St John’s Lutheran Primary School Kingaroy; and
d) Peace Lutheran Church Gatton trading as Peace Lutheran Primary School Gatton.
[23] The single issue authorisation will specify, for purposes of s.250(1)(b) of the FW Act that the employees that will be covered by the agreement will be:
“all present employees who are employed by the employers and covered by the Lutheran Church of Australia Queensland District, Schools Department Certified Agreement 2004 (CA55 of 2005), excluding Principals, Business Managers and other executive staff.”
[24] The single interest authorisation will specify, for purposes of s.250(1)(c) of the FW Act that the person nominated by the employers to make applications under the FW Act is the Executive Director of Lutheran Education Queensland, Mrs Sue Kloeden.
[25] For the purposes of s.250(1)(d) of the FW Act, there are no procedural rules prescribing any other matter(s) to which I need to attend.
[26] Section 249(4) of the FW Act reads:
“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) the day on which 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.”
[27] Because I am satisfied that the application has met the preconditions stipulated in the Fair Work Act 2009, in the manner I have set out above, I must make the single interest authorisation as sought. The authorisation will come into operation from the date of this decision, which is 5 November 2009.
SENIOR DEPUTY PRESIDENT
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