Lutheran Education SA, NT and WA Inc.
[2024] FWC 1405
•30 MAY 2024
| [2024] FWC 1405 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.248 - Application for a single interest employer authorisation
Lutheran Education SA, NT and WA Inc.
(B2024/519)
| Educational services | |
| DEPUTY PRESIDENT HAMPTON | ADELAIDE, 30 MAY 2024 |
Application for a proposed single interest employer authorisation
This matter concerns an application by Lutheran Education SA, NT and WA Inc (LESNW) for a single interest employer authorisation under s.248 of the Fair Work Act 2009 (Cth) (FWAct). This provision is found in Division 10 of Part 2-4 of the FW Act.
The matter was heard on 30 May 2024. At the conclusion of the hearing I advised that I would issue the authorisation as sought. My reasons for so doing are outlined below.
LESNW is a not-for-profit organisation that represents the interests of Lutheran schools in South Australia, Northern Territory and Western Australia and has made the application on behalf of Living Waters Lutheran School Inc, Good Shepherd Lutheran College NT Inc and Yirara College of the Finke River Mission Inc. I will refer to these schools collectively as the Applicant Employers. Each of the Applicant Employers operate Lutheran Schools in the Northern Territory.
The authorisation is sought in respect of bargaining for a proposed multi-employer agreement to apply to all present and future employees of the Applicant Employers who are engaged in the classifications presently covered by the Lutheran Schools NT Collective Enterprise Agreement 2021[1] (2021 Agreement).
The 2021 Agreement has a nominal expiry date of 31 December 2024. It covers[2] the 3 Applicant Employers. The 2021 Agreement also covers the:
Employees of the Employers who would (otherwise) be covered by the Educational Services (Teachers) Award 2020 or the Educational Services (Schools) General Staff Award 2020; and
Independent Education Union (IEU).
The 2021 Agreement[3] does not apply to:
· Principals;
· Business Managers (however called);
· Ministers of Religion who are engaged as such;
· Deputy Principals;
· Heads of Sub-Schools; and
· Directors of Staff (however called) and Heads of Sub-Schools where a documented and explicit authority exists for decision making and an accountability for those decisions in a clearly defined area of operation.
The IEU does not oppose the application. In this regard, I observe that the IEU national office, the office of its Queensland/Northern territory branch and the South Australian branch were all notified of this hearing. Mr Seals, who attended only for the SA Branch, confirmed that the IEU (as an organisation more generally) did not oppose the authorisation being made by the Commission in the terms sought. The position of the IEU was also subsequently confirmed by the IEU Queensland/Northern territory branch via correspondence provided to the Commission following the hearing.
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 FW Act.
The objects of Part 2-4 of the FW Act are set out in s.171 as follows:
“171 Objects 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.”
The Act has previously provided for single interest authorisations;[4] however the basis and operation of the authorisations was significantly amended 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.”[5]
… …
“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.”[6]
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 applicants are the employers who seek to bargaining together. This means that the “additional” requirements of s.249(1A) apply and the terms of s.249(1B) and consequential provisions do not. I observe that this is important here because the constraint operating under s.249(1D) of the FW Act, which prevents an authorisation of this kind being made where an existing ‘in-term’ enterprise agreement covers the parties, would otherwise operate if the application had been made by an (employee) bargaining representative.[7]
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.
Was a valid application made?
An application was made on behalf of the Applicant Employers on 7 May 2024. These employers would be covered by the (proposed) agreement. The application specifies the required matters, including the person nominated by the employers to make applications.[8] I am satisfied that the requirements under ss.248 and 249(b)(i) of the FW Act 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.[9] Each of the Applicant Employers employ one or more persons who are a member of, and are represented by, the IEU.[10]
Have the Parties had the opportunity to express their views?
I am satisfied that the Applicant Employers and the IEU as the bargaining representative of the employees have had the opportunity to express their views on the proposed authorisation.[11]
The relevant parties have provided submissions confirming their views, and all have supported the authorisation being made.
Have the Applicant Employers agreed to bargain together?
I am satisfied that the employers that will be covered by the agreement have agreed to bargain together, and that no person coerced, or threatened to coerce, any of the employers to so agree.[12]
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 Applicant Employers must meet the common interest and the ‘not contrary to the public interest’ requirements.
I am satisfied that the Applicant Employers have clearly identifiable common interests.[13] All the employers have sites in the Northern Territory and share many common features, including operating within the Lutheran school system and being subject to the education regulatory system of the Northern Territory. The employers have the same ethos and objectives and are subject to the same charters of operation and accreditation systems for their teaching cohorts. They also draw upon the same pool of potential employees, at least to some extent, and have relevant common bargaining interests in that respect. The Applicant Employers have a history of bargaining together in relation to the relevant employees. The core terms and conditions of employment for the relevant employees are the same at each Employer.
I am also satisfied that it is not contrary to the public interest to make the authorisation.[14] LESNW submitted that the application falls within the object of ss.3 and 171 of the FW Act. The Authorisation would facilitate the continuation of certain portable entitlements across employers, which will assist in the retention of employees in the education system.
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 Applicant Employers are reasonably comparable with those of the other employers that will be covered by the Agreement. The material before the Commission strongly supports the proposition that this is so.
General building and construction work
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 Applicant Employers and for the purposes of s.250(2) of the FW act we are 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 PR775449.
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
Appearances:
C Fielke with L Paynter on behalf of Lutheran Education SA, NT and WA Inc.
R Seal of Independent Education Union of Australia (SA Branch).
Hearing details:
2024
May 30
MS Teams Video.
[1] AE515812 PR741038.
[2] Clause 5 of the 2021 Agreement.
[3] Clause 5.4 of the 2021 Agreement.
[4] Sections 247 – 252 of the FW Act as it stood prior to the operation of the SJBP Act.
[5] Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, Revised Explanatory Memorandum at [1006].
[6] Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, Revised Explanatory Memorandum at [1066].
[7] Section 249(1D) is applicable only where s.249(1B)(e), which applies to an application made by a bargaining representative, operates. See Independent Education Union of Australia v Catholic Education Western Australia Limited and others[2023] FWCFB 177 at [14](3).
[8] Section 248(2)(c) of the FW Act – the Executive Director of LESNW.
[9] Section 249(1)(b)(i) of the FW Act.
[10] Statement of Agreed Facts at [2].
[11] Section 249(1)(b)(ii) of the FW Act.
[12] Section 249(1A) of the FW Act.
[13] Section 249(3)(a) of the FW Act.
[14] Section 249(3)(b).
Printed by authority of the Commonwealth Government Printer
<PR775450>
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