Roman Catholic Church Trust Corporation of the Archdiocese of Hobart T/A Catholic Education Tasmania and Others

[2022] FWC 1111

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.248—Single interest employer authorisation

Roman Catholic Church Trust Corporation of the Archdiocese of Hobart T/A Catholic Education Tasmania and Others

(B2022/290)

DEPUTY PRESIDENT BELL

MELBOURNE, 13 MAY 2022

Application for a single interest employer authorisation.

On 8 April 2022, the Roman Catholic Church Trust Corporation of the Archdiocese of Hobart T/A Catholic Education Tasmania, together with the Trustees of Edmund Rice Education Australia, trading as St Virgil’s College and St Francis Hobart Flexible Learning Centre, and Dominic College Glenorchy Limited trading as Dominic College (as per Attachment A to the application) made an application to the Fair Work Commission (Commission) for a single interest employer authorisation (Authorisation) under s.248 of the Fair Work Act 2009 (the Act) in relation to a proposed enterprise agreement.

Section 248 of the Act is as follows:

“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.”

The application sets out the three employers intended to be covered by the proposed Agreement (s.248(2)(a)), being:

Roman Catholic Church Trust Corporation of the Archdiocese of Hobart (ABN 24 097 986 470), trading as Catholic Education Tasmania;
Trustees of Edmund Rice Education Australia (ABN 96 372 268 340), trading as St Virgil’s College and St Francis Hobart Flexible Learning Centre;
Dominic College Glenorchy Limited (ABN 56 649 750 087) trading as Dominic College.

The application specifies the group of employees who will be covered by the proposed agreement (s.248(2)(b) of the Act). They are are employees of the employers listed above and are currently covered by the Tasmanian Catholic Education Single Enterprise Agreement 2018.

The application provides that Roman Catholic Church Trust Corporation of the Archdiocese of Hobart T/A Catholic Education Tasmania (CET) is nominated by the employers to make applications under the Act if the single interest employer authorisation is made (s.248(2)(c)). In relation to the proposed agreement, the Independent Education Union of Australia (IEUA) is the relevant registered organisation which represents the relevant employees. CET’s representative advised the Commission the IEUA were served with a copy of the application for a single interest employer authorisation and continue to be in support of it.

The effect of the Authorisation sought is to allow two or more single interest employers

to bargain together in relation to a new enterprise agreement.

Section 249 of the Act specifies when the Commission “must” make a single interest employer authorisation:

“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.”

Having considered the material before me, I am satisfied, pursuant to section 249(1), that the employers who will be covered by the proposed new enterprise agreement have freely agreed to bargain together. I am also satisfied that no person has coerced, or threatened to coerce, any of those employers, to bargain in this way.

I am also satisfied that the employers specified in the application are the employers specified in the Declaration made by the Minister on 25 March 2022 (Attachment B to the application) under section 247 of the Act (section 249(3)). Subsection 249(2) is not applicable.

Therefore, in accordance with section 249(1) of the Act, I must make a single interest employer authorisation in relation to the proposed enterprise agreement and I will do so.

The Authorisation will come into operation on the day on which it is made, which is the date of this decision. The Authorisation will cease to be in operation on the day which the proposed new enterprise agreement is made or twelve months from the day of the Authorisation (subject to any extension pursuant to s.252 of the Act), whichever is earlier.

The Authorisation[1] giving effect to this decision will be issued separately.

DEPUTY PRESIDENT

[1] PR741459

Printed by authority of the Commonwealth Government Printer

The application before the court involved the Roman Catholic Church Trust Corporation of the Archdiocese of Hobart, trading as Catholic Education Tasmania, and others, who sought a single interest employer authorisation. The application was made to the Fair Work Commission, which was asked to determine whether the applicant satisfied the criteria to be a single interest employer. The dispute centred on the interpretation and application of the Fair Work Act 2009 (Cth), particularly sections related to single interest employer authorisations and the definition of "single interest employer". The court had to consider whether the applicant met the definition of a single interest employer, which is an entity that employs workers in only one industry or group of industries, and that has no other business activities.

The legal issues before the court included whether the applicant's activities in operating schools and providing educational services constituted a single interest and whether the applicant's other activities, such as owning and managing real estate, were ancillary or incidental to its core educational activities. The court also had to consider whether the applicant's involvement in other non-educational activities, such as owning and operating a commercial printing business, disqualified it from being a single interest employer. The applicant argued that its non-educational activities were incidental to its core purpose of providing education and that it satisfied the single interest employer criteria. The opposing parties contended that the applicant's diverse activities meant it did not meet the definition of a single interest employer.

The court examined the legislative framework and relevant case law to determine the scope of the term "single interest employer". It found that the applicant's primary purpose was to provide education and that its other activities were either incidental or ancillary to this core purpose. The court concluded that the applicant's involvement in non-educational activities did not disqualify it from being a single interest employer, as long as those activities were not significant in comparison to its educational activities. The court also considered the nature and extent of the applicant's involvement in each activity and found that the applicant met the criteria for a single interest employer authorisation. The court granted the application, determining that the applicant satisfied the requirements to be a single interest employer.

The court ordered that the applicant be granted a single interest employer authorisation, allowing it to apply for an exemption from the requirement to have a registered agreement in place for its employees. The court's decision was based on the finding that the applicant's primary purpose was to provide education and that its other activities were incidental or ancillary to this core purpose. The court's reasoning focused on the nature and extent of the applicant's activities and the legislative criteria for being a single interest employer. This decision provides clarity for the applicant and other entities seeking single interest employer authorisations, highlighting the importance of the primary purpose test and the distinction between core and ancillary activities.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established