Sunrise Christian School Inc T/A Sunrise Christian School, Sunrise Christian School Whyalla
[2025] FWC 1541
•5 JUNE 2025
| [2025] FWC 1541 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.248 - Application for a single interest employer authorisation
Sunrise Christian School Inc T/A Sunrise Christian School, Sunrise Christian School Whyalla
(B2025/742)
| COMMISSIONER ROGERS | ADELAIDE, 5 JUNE 2025 |
Application for a proposed single interest employer authorisation
Sunrise Christian School Inc and Sunrise Christian School Whyalla (Sunrise Group) have made an application for a single interest employer authorisation under s 248 of the Fair Work Act 2009 (the Act), to enable the Sunrise Group to commence bargaining for a multi-enterprise agreement.
Operating six schools[1] across South Australia, Sunrise Group has campuses located in Whyalla, Fullarton, Paradise, Morphett Vale, Marion and Naracoorte.[2] The authorisation would allow Sunrise Group to negotiate one agreement which would apply to all campuses. Currently there are two separate agreements, Sunrise Christian School Enterprise Agreement 2022 and Sunrise Christian School Whyalla Enterprise Agreement 2022, which contain identical terms.[3]
An authorisation is sought for a proposed multi-enterprise agreement to apply to employees at all Sunrise Group School campuses who are employed as teachers and non-teaching school staff assisting directly or indirectly in the teaching process of the school, excluding:
· The Chief Executive Officer;
· The Principal/s;
· Early Learning Centre employees;
· Members of a recognised religious teaching order and/or Ministers of Religion;
· Persons employed as sports coaches, music tutors, or predominately in the delivery of extra curricula activities; and
· Senior managerial non-teaching staff who are not classified within the Nonteaching employees staff classification structure of the agreement and whose salary exceeds the salaries pertaining to that classification structure.[4]
Section 249 of the Act provides:
“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.”
Section 249 of the Act requires the Commission to make a single interest employer authorisation if the requisite provisions have been met. The requirements that must be met vary depending on who has made the application and the circumstances of the employers involved.
This application has been made by two employers who seek to bargain together, so the requirements of s 249 (1A) of the Act apply.
The terms in s 249 (1B) of the Act and consequential provisions do not apply, which is important because the constraint in s 249 (1D) of the Act would otherwise prevent an authorisation being made if there is an existing ‘in-term’ agreement that covers the parties, if the application were made by employee bargaining representatives.
For the reasons set out below, I have found that based on the materials before me, the necessary requirements set out in s 249 of the Act have been met and I must make the single interest employer authorisation.
Was a valid application made?
I am satisfied that a valid application was made in accordance with s 248 of the Act. Sunrise Christian School Inc and Sunrise Christian School Whyalla[5] made an application specifying them both as employers that will be covered by the agreement. Mr Mark Noakes was nominated as the person to make applications under the Act if the authorisation is made.[6] The materials provided to the Commission[7] specify the employees to be covered by the agreement. Accordingly, the requirements in s 249 (1) (a) have been met.
Are at least some of the employees who will be covered by the Agreement represented by an employee organisation?
Some of the employees of Sunrise Group who will be covered by the proposed agreement are members of the Independent Education Union (South Australia) Branch (IEU SA).[8] I am satisfied that s 249 (1) (b) (i) has been met.
Have the bargaining representatives had the opportunity to express their views?
In making the application, Sunrise Group have had the opportunity to express their views on the proposed agreement.
Seven employee bargaining representatives were identified in the application. One employee bargaining representative, the IEU SA, provided written correspondence in support of the application on 11 April 2025.
On 19 May 2025 my Chambers wrote to the remaining bargaining representatives providing them an opportunity to express their views on the authorisation to the Commission.[9]
One response was received which objected to the authorisation on the following grounds[10]:
· The time provided by Sunrise Group to the Whyalla Campus staff to consider the proposed authorisation did not allow employees to meaningfully engage with the process;
· The Whyalla Campus has unique features and challenges that city-based campuses do not;
· Concerns that the Whyalla Campus employees covered by the proposed agreement could be outvoted by city-based employees in agreement negotiations; and
· That there is a precedent for zone-based provisions to be in enterprise agreements.
I have taken these issues into consideration to the extent that they are relevant to the statutory requirements of the Act.
Accordingly, I find that the requirements in s 249 (1) (b) (ii) have been met.
Have Sunrise Group 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 Sunrise Group to agree to bargain together.[11]
Have the requirements of either ss. 249(2) or 249(3) been met?
As Sunrise Group are not franchisees, s 249 (3) of the Act is the relevant provision. It requires that Sunrise Group have clearly identifiable common interests and that it is not contrary to the public interest to make the authorisation.
I am satisfied that Sunrise Group have clearly identifiable common interests.[12] While the regional nature of the geographical location differs amongst Sunrise Group, both employers operate schools in South Australia and their regulatory regime is undeniably intertwined. Sunrise Group have a shared Executive Leadership team to ensure that strategic decisions, policies and goals are aligned[13]and each school reports to the same Board through one Chief Executive Officer.[14] Sunrise Group are required to adhere to State and Federal standards such as the Australian Curriculum, Education Standards Board (SA), Teacher Registration Board (SA) and child protection legislation.[15] Additionally, the schools participate in a joint professional development program twice annually,[16] which covers Work Health and Safety and compliance, leadership development and curriculum initiatives.
Sunrise Group operate schools in South Australia and seek to provide high-quality education within a Christian context.[17] Each school relies on a centralised resource for finance, payroll, human resources, marketing and ICT.[18]
Employee terms and conditions in both enterprises are shared despite having two enterprise agreements. The current agreements have identical terms and allowing multi-enterprise bargaining will streamline negotiations. Shared funding sources[19] creates shared bargaining constraints and staff members who transfer from one entity to the other carry their accrued benefits with them.
Notwithstanding that the common interests are not identical because of the regional location of Sunrise Christian School Whyalla, when considered as a whole, overwhelmingly there are clearly identifiable common interests that support the making of the authorisation. I observe that to date bargaining has resulted in similar terms and conditions across Sunrise Group Enterprise Agreements[20] despite bargaining separately.
I am also satisfied that it is not contrary to the public interest to make the authorisation. Making the authorisation is consistent with the objects of the Part.[21]
Accordingly, I am satisfied that the requirements of s 249 (3) of the Act have been met.
Do Sunrise Group have reasonably comparable operations and business activities?
As the requirements of s 249 (3) have been met, it is now necessary to consider whether the operations and business activities of Sunrise Group are reasonably comparable.[22] The material before the Commission supports that it is.
Does the Agreement cover employees in relation to general building and construction work?
The agreement will not cover employees in relation to general building and construction work so the requirements of s 251A of the Act are met.
Other Matters
The proposed authorisation specifies the matters required in s 250 (1) of the Act. Given the findings I have made, s 250 (2)-(4) do not apply.
Conclusion
I am obliged to issue the authorisation under s 249 (1) of the Act because I am satisfied of all of the relevant requirements.
The authorisation is now issued in conjunction with this decision in PR787927.
COMMISSIONER
[1] Application at qn 5.6.
[2] IEU letter dated 11 April 2025.
[3]Application at qns 5.4-5.5.
[4] Email dated 27 May 2025 from E Sexton.
[5] The Act s 248 (1) (a).
[6] Ibid s 248 (2) (c).
[7] Application at qn 2.2 and Email dated 27 May 2025 from E Sexton.
[8] T Oosterbaan letter dated 11 April 2025.
[9] The Act s 249 (1)(b)(ii).
[10] Email dated 21 May 2025 from T Wynn.
[11] The Act s 249 (1A).
[12] Ibid s 249 (3A).
[13] Application at qn 5.4.
[14] Application at qn 5.5.
[15] Ibid.
[16] Application at qn 5.6.
[17] Application at qn 5.5.
[18] Ibid.
[19] Application at qn 5.4.
[20] Sunrise Christian School Enterprise Agreement 2022 (AE516798) and Sunrise Christian School Whyalla Enterprise Agreement 2022 (AE516802).
[21] The Act s 171.
[22] Ibid s 249 (1) (b) (vi).
Printed by authority of the Commonwealth Government Printer
<PR787926>
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