Lutheran Church of Australia Queensland District T/A Lutheran Education Queensland
[2023] FWC 2720
•19 OCTOBER 2023
| [2023] FWC 2720 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.248 - Application for a single interest employer authorisation
Lutheran Church of Australia Queensland District T/A Lutheran Education Queensland
(B2023/1011)
| DEPUTY PRESIDENT HAMPTON | ADELAIDE, 19 OCTOBER 2023 |
Application for a proposed single interest employer authorisation – transitional provisions applied – authorisation made.
This matter concerns an application by the Lutheran Church of Australia Queensland District T/A Lutheran Education Queensland (LEQ) for a single interest employer authorisation under s.248 of the Fair Work Act 2009 (Cth) (the Act). This provision is found in Division 10 of Part 2-4 of the Act.
LEQ has also made the application on behalf of Peace Lutheran Church Gatton T/A Peace Lutheran Primary School (Peace Lutheran). I will refer to the LEQ and Peace Lutheran collectively as the Applicant Employers.
The authorisation is sought in respect of bargaining for a proposed muti-employer agreement to apply to all present and future employees of the Applicant Employers who are engaged in the classifications presently covered by the Queensland Lutheran Schools Single Enterprise Agreement 2020[1] (2020 Agreement).
The 2020 Agreement has a nominal expiry date of 30 June 2023. It covers 25 Lutheran primary schools and colleges where the employer is LEQ and one Lutheran primary school where the employer is the Peace Lutheran. The 2020 Agreement also covers the:
Employees of the Employers;
Independent Education Union (IEU);
Transport Workers Union (TWU);
Queensland Nurses' Union of Employees (QNMU); and
Australian Nursing and Midwifery Federation (ANMF).
The parties in this matter have a history of bargaining collectively through the single interest employer authorisation process as provided in various forms under the Act. The Applicant Employers obtained a single interest employer authorisation from the Commission pursuant to section 249 of the Act on 18 September 2019, as varied on 16 February 2021 (to extend the term of the authorisation). The Applicant Employers were also subject to a single interest authorisation in respect of the Queensland Lutheran Schools Single Enterprise Agreement 2016 (2016 Agreement). In addition to bargaining for the 2016 Agreement and 2020 Agreement, the Applicant Employers also bargained together under single interest employer authorisations for the Queensland Lutheran Schools Single Enterprise Agreement 2009[2] and the Queensland Lutheran Schools Single Enterprise Agreement 2013.[3]
The Applicant Employers applied to the Hon Tony Burke MP, Minister for Employment and Workplace Relations (Minister) for a declaration pursuant to s.247 of the Act prior to the commencement of the bargaining and other reforms to the Act[4] which commenced on 6 June 2023.
The Minister made the declaration on 9 August 2023 that the Applicant Employers may bargain together for a proposed enterprise agreement.
The relevant transitional provisions[5] at Schedule 1, item 74 of the Act preserve the operation of Division 10 of Part 2-4 in these circumstances to the effect that the Division continues to apply as if those amendments had not been made. This means that in determining this application the Commission must apply the terms of the Act that applied prior to the 6 June 2023 amendments.
The IEU does not oppose the application, the QNMU and ANMF have supported the making of the authorisation, and TWU have expressed no views.
Sections 248, 249 and 250 of the Act (pre-6 June 2023) provided as follow:
“248 Single interest employer authorisations
(1)Two or more employers may apply to the FWC 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.
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)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.
Franchisees
(2)The requirements of this subsection are met if the FWC is satisfied that 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.
Employers that may bargain together for the agreement
(3)The requirements of this subsection are met if the FWC is satisfied that all of the employers are specified in a declaration made under section 247 in relation to the agreement.
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.
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 employers that may bargain together for a proposed enterprise agreement) 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.
In effect, in this matter the Commission must make the single interest authorisation if a valid application for the authorisation has been made and it is satisfied that:
· the employers that will be covered by the agreement have agreed to bargain together; and
· no person coerced, or threatened to coerce, any of the employers to agree to bargain together; and
· the requirements of either subsection 249(2) or 249(3) are met.
A valid application has been made under s.248 of the Act.
The evidence[6] before the Commission is that the Applicant Employers have agreed to bargain together and have not been coerced or threatened to agree to bargain together. This was confirmed directly to the Commission during proceedings, and I observe that this is consistent with the history of bargaining together under single interest employer authorisations.
The Applicant Employers have obtained the necessary declaration under s.247 of the Act from the Minister dated 9 August 2023 and this covers all of the relevant employers. This satisfies ss.249(3) of the Act.
Accordingly, all of the statutory requirements for the making of the single interest authorisation in this matter have been met.
An authorisation meeting the requirements of s.250 of the Act has been separately issued as PR767372.
In accordance with s.249(4) of the Act, the authorisation comes into operation on 19 October 2023.
DEPUTY PRESIDENT
Appearances:
H Searing, with permission, of Clayton Utz, with M Verreynne on behalf of Lutheran Church of Australia Queensland District.
N Salqvist of the Independent Education Union of Australia Qld/NT Branch.
C Travascus of the Australian Nursing and Midwifery Federation.
Hearing details:
2023
October 19
MS Teams Video Hearing.
[1] AE510532.
[2] AE877361.
[3] AE403870.
[4] As a result of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022.
[5] Ibid.
[6] Affidavit of David Lonergan, Acting Executive Director of LEQ.
Printed by authority of the Commonwealth Government Printer
<PR767359>
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