The Corporation of the Trustees of the Order of the Sisters of Mercy in Queensland; Brigidine College; Mary Mackillop College; The Trustees of Loreto Properties Association; Lourdes Hill College; Mount Alvernia...
[2009] FWA 1013
•9 NOVEMBER 2009
[2009] FWA 1013 |
|
DECISION |
Fair Work Act 2009
s.248 - Application for a single interest employer authorisation
(B2009/10988)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 9 NOVEMBER 2009 |
Summary: Ministerial declaration that two or more employers may bargain together – application to FWA for authorisation following declaration – some employers declared in Minister’s declaration not actual employers – limited authorisation made in relation to some employers only.
[1] On 4 November 2009, an application to Fair Work Australia under s.248(1) of the Fair Work Act 2009 (“the FW Act”) for a single interest employer authorisation was made by the Religious Institute Schools (the composition of which is described in more detail below). The application followed a declaration by the Minister having been made under s.247 of the FW Act (the details of which are discussed below).
[2] The effect of the authorisation as sought is to allow two or more single interest employers (who are not franchisees of the same franchisor) to bargain together in relation to a proposed enterprise agreement.
[3] The Religious Institute Schools comprise of 17 employers who run single site schools across Queensland. These include mostly Catholic religious orders, along with Edmund Rice Education.
[4] The 17 employers who have made the application that is now before me are:
(i) The Corporation of the Trustees of the order of the Sisters of Mercy in
Queensland;
(ii) Brigidine College Indooroopilly;
(iii) Mary MacKillop College Limited;
(iv) The Trustees of Loreto Properties Association;
(v) Lourdes Hill College Limited;
(vi) Mount Alvernia College Limited;
(vii) Mt St Michael’s College Limited;
(viii) St Rita’s College Limited;
(ix) St Ursula’s College, Toowoomba;
(x) St Ursula’s College Limited;
(xi) Stuartholme School;
(xii) Trustees of the Christian Brothers (Queensland)
(xiii) Downlands College;
(xiv) Iona College Ltd;
(xv) Trustees of the Marist Brothers;
(xvi) Padua College Limited; and
(xvii) Villanova College Limited.
[5] As mentioned above, as a necessary statutory precursor to this application before me, the above-named employers sought a declaration from the Minister for Employment and Workplace Relations (“the Minister”) that they may bargain together for an enterprise agreement. This application was made on 1 September 2009 and the Minister’s declaration appears, on the basis of extraneous media materials, to have been made on 23 October 2009. 1
[6] Section 247(1) of the FW Act makes provision for such an application to be made to the Minister for a declaration. The declaration may be made under s.247(3) of the FW Act, with the effect that two or more employers may agree to bargain together for an enterprise agreement.
[7] The relevant provisions read as follows:
“(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).
[…]
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.” [my emphasis]
[8] Section 247(4) of the FW Act sets out the matters the Minister must take into account in making such a determination. It is not necessary that I replicate those provisions here as I have done so by separate decision in [2009] FWA 975. 2
[9] The Minister’s declaration named the following as being “the relevant employers” in her declaration:
(i) The Corporation of the Trustees of the order of the Sisters of Mercy in Queensland;
(ii) Brigidine College Indooroopilly;
(iii) Corpus Christi College Limited;
(iv) The Trustees of Loreto Properties Association;
(v) Lourdes Hill College Limited;
(vi) Mount Alvernia College Limited;
(vii) Mt St Michael’s College Limited;
(viii) St Rita’s College Limited;
(ix) The Community of Ursuline Nuns;
(x) St Ursula’s College Limited;
(xi) Stuartholme School;
(xii) Trustees of the Christian Brothers (Queensland)
(xiii) The Corporation of the Society of the Missionaries of the Sacred Heart;
(xiv) The Corporation of the Congregation of the Oblates of Mary Immaculate;
(xv) Trustees of the Marist Brothers;
(xvi) Padua College Limited; and
(xvii) Villanova College Limited.
[10] The Minister subsequently corresponded with Ms Helen Sinclair, the Principal of the Stuartholme School, on behalf of the above named employers. The purpose of that correspondence was to notify the employers and their representative that she had considered the requirements of the FW Act and now declared that the 17 employers cited in the declaration “(to the extent that they are national system employers within the meaning of the Act) are allowed to bargain together for an enterprise agreement.”
[11] That correspondence expressly stated that it served as the declaration as sought by the employers under s.247(4) of the FW Act and notwithstanding the declaration, the employers were required under s.248 of the FW Act “to apply to Fair Work Australia for a single interest employer authorisation before bargaining for an enterprise agreement can commence.”
[12] The above named employers have now made the application for a single interest authorisation that is now before me. I now turn to consider that application.
[13] Section 248 of the FW Act reads as follows:
“(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.”
[14] For the purposes of s.248(2)(a) of the FW Act, the application must specify the employers that will be covered by the agreement. It is only if these employers are declared by the Minister as being “allowed to bargain together for an enterprise agreement” that the authorisation by FWA can be made.
[15] In this current situation, “the relevant employers” specified in the Minister’s declaration are not synonymous with the employers who have sought the application under s.248 of the FW Act.
[16] It is apparent from the materials before me that this anomaly arises from two distinguishable sets of errors in the application as made under s.247 of the FW Act to the Minister on 1 September 2009.
[17] The first error was that one of the employer’s named in the application for a declaration under s.237 of the FW Act was wrongly named for reason that it had, on 30 June 2009, changed its name (as the as the ASIC Certificate of Registration on Change of Name indicated) from Corpus Christi College to Mary McKillop College. I note from the same ASIC Certificate the Australian Company Number (ACN) has remained the same despite the change in name as registered.
[18] The second set of errors arises in relation to three other employers declared to have been “relevant employers” for the purpose of the Minister’s declaration.
[19] These are:
(a) The Community of Ursuline Nuns;
(b) The Corporation of the Society of the Missionaries of the Sacred Heart; and
(c) The Corporation of the Congregation of the Oblates of Mary Immaculate.
[20] Respectively, the circumstances in relation to the legal employer are as follows:
(a) the employer is not the Community of Ursuline Nuns but St Ursula’s College, Toowoomba (a change in the legal employer which appears to have occurred on the commencement of the 2007 school year);
(b) the employer is not the Corporation of the Society of the Missionaries of the Sacred Heart but Downlands College (the Corporation being the legal owner of the employing entity, Downlands College); and
(c) the employer is not the Corporation of the Congregation of the Oblates of Mary Immaculate, but Iona College Limited (a change which appears to have taken effect in March 2009).
[21] The change in name from Corpus Christi College to Mary McKillop College, where the ACN has remained the same, does not lead me to conclude that the employer named in the Minister’s declaration made under s.247 of the FW Act in this respect is in substance is any different from the employer’s name in the application made under s.248 of the FW Act.
[22] That is, despite the change in name, there has been no change in the corporate identity of the employer. The ACN has remained unchanged.
[23] However, the identity of the legal employer in the other three circumstances set out above is substantively different. In respect of these three employers, “the relevant employers” specified in the Minister’s declaration does not accord with the corporate identity of the employers who have made the application for an authorisation under s.248 of the FW Act.
[24] An issue therefore arises: is FWA able to make a single interest employer authorisation in respect of a subset of “the relevant employees” who were specified in the Minister’s declaration and who in fact are employers?
[25] Section 250(2) of the FW Act reads as follows:
“Authorisation may relate to only some of employers or employees
(2) If FWA is satisfied of the matters specified in subsection 249(2) or (3) (which deal with franchisees and employers that may bargain together for a proposed enterprise agreement) in relation to only some of the employers that will be covered by the agreement, FWA may make a single interest employer authorisation specifying those employers and their employees only.”
[26] The reference within s.250(2) of the FW Act to s. 249(3) of the FW Act refers to “employers that may bargain together for a proposed enterprise agreement”. Such employers are not franchisees but employers who have been specified within a Ministerial declaration which has been declared under s.247 of the FW Act, and for which an application for an authorization has been made under s.248 of the FW Act.
[27] This much is made clear by the structure of s.249(1) of the FW Act which reads as follows:
“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.”
[28] Subsection 249(3) of the FW Act reads as follows:
“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.”
[29] Accordingly, s.250(2) of the FW Act operates to qualify the effect of any finding under s.249(3) of the FW Act. Section 250(2) of the FW Act enables Fair Work Australia to make a single interest employer authorisation in relation to only those employers of which Fair Work Australia is satisfied may bargain together and who have been specified in the Minister’s declaration (made under s.247 of the Act).
[30] In my view, therefore, subject to the further requirements of the FW Act being met, I may make a single interest authorisation in relation to those employers of which I am satisfied may bargain together and exclude those of whom I am not satisfied may bargain together. In view of this finding, I will now continue to evaluate the further statutory requirements under s.248(2) and s.249(1) of the FW Act in relation to the application for an authorisation of the kind discussed above.
[31] Section 248(2) of the FW Act reads as follows:
“(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.”
[32] For the purposes of s.248(2)(a) of the FW Act, the application (though not the Minister’s declaration) has specified the employers to be covered by the agreement. They are:
(i) The Corporation of the Trustees of the order of the Sisters of Mercy in Queensland;
(ii) Brigidine College Indooroopilly;
(iii) Mary MacKillop College Limited;
(iv) The Trustees of Loreto Properties Association;
(v) Lourdes Hill College Limited;
(vi) Mount Alvernia College Limited;
(vii) Mt St Michael’s College Limited;
(viii) St Rita’s College Limited;
(ix) St Ursula’s College Limited;
(x) Stuartholme School;
(xi) Trustees of the Christian Brothers (Queensland);
(xii) Trustees of the Marist Brothers;
(xiii) Padua College Limited; and
(xiv) Villanova College Limited.
[33] For the purposes of s.248(2)(b) of the FW Act, the application has specified the employees to be covered by the agreement. They are described as being “the employees of the individual employers set out [in the application] who are covered by either the Religious Institute Girls School Catholic Education Employing Authorities (Queensland) Agreement or the Religious Institute Boys School Catholic Education Employing Authorities (Queensland) Agreement known as Religious Institute Girls School Agreement EB V and the Religious Institute Boys School Agreement EB V respectively.”
[34] For the purposes of s.248(2)(c) of the FW Act, the application nominates Ms Helen Sinclair, the Principal of the Stuartholme School in Toowong, Queensland as the authorised person to make applications to Fair Work Australia.
[35] For the purposes of s.249(1)(b)(i) and (ii) of the FW Act, it is also evident from the written confirmations that accompanied this application that the employers above have agreed to bargain together and none of the employers have been “coerced, or threatened to coerce, any of the employers to agree to bargain together”.
[36] For the purposes of s.249(1)(c) of the FW Act, I note that the requirements of s.249(3) of the FW Act requires me to be satisfied that “all of the employers are specified in [the] declaration made under s.247 of the Act in relation to the agreement.” For the reasons I have discussed above, I am not so satisfied.
[37] Section 249(1) of the FW Act states that Fair Work Australia “must” make the single interest authorisation employer authorisation if it is satisfied of the various factual preconditions required to be established under s.249 of the FW Act. Those factual preconditions have been met in each instance, bar in relation to the requirements of s.249(1)(c) of the FW Act.
[38] However, I am satisfied that I am able to make an authorisation (because of the provisions of s.250(2) of the FW Act discussed above) in relation only to some of the employers who will be covered by the agreement.
[39] In light of the requirements of s.250(1) of the FW Act, I will make the limited authorisation.
[40] The limited single issue authorisation will specify, for purposes of s.250(1)(a) of the FW Act, that the employers that will be covered by the agreement will be:
(i) The Corporation of the Trustees of the order of the Sisters of Mercy in Queensland;
(ii) Brigidine College Indooroopilly;
(iii) Mary MacKillop College Limited;
(iv) The Trustees of Loreto Properties Association;
(v) Lourdes Hill College Limited;
(vi) Mount Alvernia College Limited;
(vii) Mt St Michael’s College Limited;
(viii) St Rita’s College Limited;
(ix) St Ursula’s College Limited;
(x) Stuartholme School;
(xi) Trustees of the Christian Brothers (Queensland)
(xii) Trustees of the Marist Brothers;
(xiii) Padua College Limited; and
(xiv) Villanova College Limited.
[41] For purposes of s.250(1)(b) of the FW Act, the employees who will be covered by the limited authorisation will be:
“the employees of the individual employers set out [in the application] who are covered by either the Religious Institute Girls School Catholic Education Employing Authorities (Queensland) Agreement or the Religious Institute Boys School Catholic Education Employing Authorities (Queensland) Agreement known as Religious Institute Girls School Agreement EB V and the Religious Institute Boys School Agreement EB V respectively.”
[42] The single interest authorisation will specify, for purposes of s.250(1)(c) of the FW Act that the person nominated by the employers to make applications under the FW Act will be Ms Helen Sinclair, the Principal of the Stuartholme School in Toowong, Queensland.
[43] For the purposes of s.250(1)(d) of the FW Act, there are no procedural rules prescribing any other matter(s) to which I need to attend.
[44] Section 249(4) of the FW Act reads:
“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.”
[45] Because I am satisfied that the application, subject to the qualifications I have discussed above, has met the preconditions stipulated in the FW Act, I must make the limited single interest authorisation as sought. The authorisation will come into operation from the date of this decision, which is 9 November 2009.
[46] I note that it may be the intention of the three employers who are not subject to this authorisation for the reasons set out above to seek to be added to the authorisation.
[47] Such a course of action will require those employers to seek a Ministerial declaration under s.247 of the FW Act that they may bargain together, and for that declaration to establish a nexus with the declaration that is now before me (so that they may be added to this authorisation that I will make). Section 251 of the FW Act reads relevantly in these regards:
“Variation to add employer
(3) An employer that is not specified in a single interest employer authorisation may apply to FWA for a variation of the authorisation to add the employer’s name to the authorisation.
(4) If an application is made under subsection (3), FWA must vary the authorisation to add the employer’s name if FWA is satisfied that:
(a) each employer specified in the authorisation has agreed to the employer’s name being added; and
(b) no person coerced, or threatened to coerce, the employer to make the application; and
(c) the requirements of subsection [...] (3) (which deal[s] with [...] employers that may bargain together for a proposed enterprise agreement) are met.”
SENIOR DEPUTY PRESIDENT
1 The Minister’s declaration is undated.
2 Application by the Lutheran Church of Australia Queensland District; St John's Lutheran Church Kingaroy; St John's Lutheran Church Bundaberg T/A St John's Lutheran Primary School Bundaberg; Peace Lutheran Church Gatton [2009] FWA 975
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