Lutheran Schools Association of SA, NT & WA Inc

[2012] FWA 5616

[2012] FWA 5616

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.248 - Application for a single interest employer authorisation

Lutheran Schools Association of SA, NT & WA Inc
(B2012/865)

COMMISSIONER JONES MELBOURNE, 4 JULY 2012

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] The Lutheran Schools Association of SA, NT & WA Inc(LSA) has applied to Fair Work Australia under s.248(1) of the Fair Work Act 2009 (the Act) for a single interest employer authorisation (following declaration by the Minister having been made under s.247 of the Act, the details of which are discussed below).

[2] Section 248 of the Act provides:

248 Single interest employer authorisations

(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.”

[3] LSA made its application as the nominated representative of employers who will be covered by the proposed enterprise agreement. The employers that are seeking to bargain together are:

● Living Waters Lutheran School

● St Andrew Lutheran School

● Yirara College

● Good Shephard Lutheran College

[4] The employees who will be covered by the proposed enterprise agreement specified in the application are employees of the employers listed in paragraph [3] above, except Principals, Business Managers and other executive staff.

[5] Section 249 of the Act relevantly provides:

249 When FWA must make a single interest employer authorisation

Single interest employer authorisation

(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.”

[6] On 17 May 2012, on behalf of the employers listed in paragraph [3] above, the LSA sought a declaration under s.247 of the Act from the Minister for Tertiary Education, Skills, Jobs and Workplace Relations (the Minister) that they may bargain together for an enterprise agreement.

[7] Section 247 provides:

247 Ministerial declaration that employers may bargain together for a proposed enterprise agreement

Application for declaration

(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).

Note: Employers named in a declaration may apply for a single interest employer authorisation (see Subdivision B of this Division).

(2) The application must specify the employers (the relevant employers) that will be covered by the agreement.

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.

(4) In deciding whether or not to make the declaration, the Minister must take into account the following matters:

(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.

(5) If the Minister decides to make the declaration, the relevant employers must be specified in the declaration.

(6) A declaration under subsection (3) is not a legislative instrument.”

[8] On 1 June 2012, the Minister issued a declaration under subsection 247(3) of the Act (Ministerial Declaration), declaring that employers (as identified in paragraph [3] above) may bargain together for a single enterprise agreement.

[9] Having considered the application, the Ministerial Declaration, correspondence from the LSA to the Minister dated 17 May 2012. I am satisfied that:

• an application for a single interest employer authorisation has been made: s249(1)(a);



• the employers that will be covered by the agreement have agreed to bargain together: s249(1)(b)(i);



• no person coerced, or threatened to coerce, any of the employers to agree to bargain together: s.249(1)(b)(ii); and



• all of the employers are specified in a declaration made under s.247 in relation to the agreement: s.249(3).

[10] Consequently, in accordance with s.249 of the Act, I will make a single interest employer authorisation. The authorisation will come into effect on 4 July 2012.

COMMISSIONER

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