The Salvation Army (NSW) Property Trust and The Salvation Army (QLD) Property Trust t/as Aged Care Plus

[2015] FWC 4335

[2015] FWC 4335

FAIR WORK COMMISSION

DECISION

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

The Salvation Army (NSW) Property Trust and The Salvation Army (QLD) Property Trust t/as Aged Care Plus
(B2015/594)

COMMISSIONER CAMBRIDGE SYDNEY, 9 JULY 2015

Application for a single interest employer authorisation.

[1] This matter involves an application made under s.248 of the Fair Work Act 2009 (“the Act) for the Fair Work Commission (the Commission) to make a single interest employer authorisation. The application was filed at Sydney on 12 June 2015 and made by The Salvation Army (NSW) Property Trust and The Salvation Army (QLD) Property Trust trading as Aged Care Plus (ACP) (the Employers).

[2] Section 248 of the Act is set out below:-

“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.”

[3] The application concerns a proposed enterprise to cover certain employees of the Employers who work in residential aged care facilities and home care programs across New South Wales, Queensland and the Australian Capital Territory, excluding employees who work at the North Ryde (NSW) Head Office of ACP.

[4] The Employers conduct a business that has been providing permanent accommodation and care services to older persons since 1899 across NSW, QLD and ACT under the structure umbrella of The Salvation Army, Australia Eastern Territory. The Employers are to be covered by the proposed agreement.

[5] The person nominated by the Employers to make applications pursuant to s. 248(2)(c) of the Act is Sharon Callister, Chief Executive Officer of ACP.

[6] The effect of the authorisation as sought is to allow two or more single interest employers to bargain together in relation to the proposed agreement. Section 249 of theAct 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.”

[7] After examining and considering the application and the materials filed with the application, I requested further material in order to reach the satisfaction required by the statutory provisions. On 26 June 2015, the Employers provided further material in support of the application.

[8] The matter was listed for a Hearing in Chambers on 9 July 2015. In the absence of any objection to the application, I have proceeded to determine the matter by reference to and reliance upon the grounds, submissions and other materials provided with the application and supported by the materials subsequently filed by the Employers.

[9] Consequently, the Commission is satisfied that the requirements of s. 249(1) of the Act have been met and therefore the Commission must make a single interest employer authorisation in the terms as broadly sought by the application.

[10] The authorisation will come into operation on the day on which it is made. The authorisation will cease to be in operation on the day which the proposed agreement is made or 12 months from the day of the authorisation, whichever is earlier.

COMMISSIONER

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