Southern Cross Care (Tas) Inc

[2017] FWC 193

[2017] FWC 193

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.248—Single interest employer authorisation

Southern Cross Care (Tas) Inc
(B2017/16)

DEPUTY PRESIDENT WELLS HOBART, 10 JANUARY 2017

Single interest employer authorisation – Regarding proposed Southern Cross Care (Tas) Inc and Mary’s Grange Inc. Enterprise Agreement 2017.

[1] On 3 January 2017, Southern Cross Care (Tas) Inc made application for a Single Interest Employer Authorisation under s.248 of the Fair Work Act 2009 (the Act). The application concerns a proposed enterprise agreement to cover nursing and non-nursing staff in the aged care workers employed by the employers specified in the application.

[2] Section 248 of the Act provides:

“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 248 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] The application specifies the two Employers that will be covered by the proposed enterprise agreement, the group of employees who would be covered by the Agreement, enrolled nursing employees, aged care employees, home care employees, administrative employees and pastoral carers, all of whom are involved in the provision of aged and community home care services in the private sector in Tasmania.

[4] The effect of the authorisation sought is to allow two single interest employers to bargain together in relation to a proposed enterprise agreement, replacing three separate enterprise agreements. Section 249 of the Act specifies when the Fair Work 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 has 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.”

[5] The application specifies the person nominated by the Employers to make applications under the Act if the authorisation is made. That person is Mr Richard Sadek, Chief Executive Officer of Southern Cross Care (Tas) Inc. Mr Sadek has also provided a Statutory Declaration in support of the application.

[6] Having considered the terms of the application and the attached Statutory Declaration and Declaration made by the Minister under s.247 of the Act, I am satisfied the Employers intended to be covered by the proposed Agreement have agreed to bargain together, and that no person has coerced or threatened to coerce any of those Employers to agree to bargain in this way.

[7] I am further satisfied that the Employers who are the subject of the authorisation are also the employers specified in the Declaration made by the Minister on 20 December 2016 under s.247 of the Act (section 249(3)).

[8] As the pre-conditions set out in ss.249(1), (2) and (3) of the Act have been satisfied, I must make a Single Interest Employer Authorisation in relation to the proposed enterprise agreement. Accordingly, I make the authorisation in relation to that proposed Agreement.

[9] The authorisation will come into operation on the day on which it is made, which is the date of this decision.

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

DEPUTY PRESIDENT

 1   PR589268

Printed by authority of the Commonwealth Government Printer

<Price code A, PR589267>