DECISION

Fair Work Act 2009
s.251—Single interest employer authorisation

Trustees of Edmund Rice Education Australia
(B2015/1607)

COMMISSIONER WILSON

MELBOURNE, 17 NOVEMBER 2015

Application for a variation of a single interest employer authorisation.

[1] On 19 February 2015 the Fair Work Commission (the Commission) issued a single interest employer authorisation (the Authorisation) (PR561197) pursuant to s.249 of the Fair Work Act 2009 (the Act). The Authorisation was made to cover some 17 employers in relation to the bargaining process for a proposed enterprise agreement. The person nominated by the employers to make applications under the Act is Mr Phillip Whitehouse of the Queensland Catholic Education Commission.

[2] On 11 November 2015 an application was made pursuant to s.251 of the Act for the variation of the Authorisation. The application was brought by the Trustees of Edmund Rice Education Australia, with Mr Whitehouse of the Queensland Catholic Education Commission the nominated bargaining representative for the Applicant.

[3] Specifically, the application seeks the following relief;

The addition of the Applicant legal employer entity ‘Trustees of Edmund Rice Education Australia’ to the Authorisation pursuant to s.251(3) of the Act; and

Removal of one employer, ‘Trustees of the Christian Brothers (Queensland)’, from the Authorisation pursuant to s.251(1) of the Act.

[4] On 12 November 2015 the Commission contacted the Applicant, who advised that it consented to the matter being determined on the material submitted with the application.

[5] The material before the Commission includes Ministerial Declarations under section 247(3) of the Act (which pertain to Ministerial declarations that employers may bargain together for a proposed enterprise agreement); a copy of the Authorisation Order; evidence of the change in circumstances of the relevant employers; written consent of the employers subject to the Authorisation to the Applicant being added to the Authorisation; and evidence from the Applicant and each of the employers subject to the Authorisation that none of the parties have been coerced into the making of the application or to agree to bargain collectively.

[6] Section 251 of the Act provides as follows;

251 Variation of single interest employer authorisations

Variation to remove employer

(1) An employer specified in a single interest employer authorisation in relation to a proposed enterprise agreement may apply to the FWC for a variation of the authorisation to remove the employer’s name from the authorisation.

(2) If an application is made under subsection (1), the FWC must vary the authorisation to remove the employer’s name if the FWC is satisfied that, because of a change in the employer’s circumstances, it is no longer appropriate for the employer to be specified in the authorisation.

Variation to add employer

(3) An employer that is not specified in a single interest employer authorisation may apply to the FWC for a variation of the authorisation to add the employer’s name to the authorisation.

(4) If an application is made under subsection (3), the FWC must vary the authorisation to add the employer’s name if the FWC 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 249(2) or (3) (which deal with franchisees and employers that may bargain together for a proposed enterprise agreement) are met.

[7] I am satisfied that each of the requirements of sections 251(3) and (4) have been met.

[8] Pursuant to s.251 of the Act, the Authorisation is varied to include the following employers;

Trustees of Edmund Rice Education Australia.

[9] The application provides that the relevant change of circumstances, for the purposes of s.251(2), was the Applicant becoming an incorporated body and becoming the relevant legal employing entity for, and in the process assuming responsibility for most of the educational facilities of, the Trustees of the Christian Brothers (Queensland). Accordingly, it is put, and I so find, that it is no longer appropriate for the Trustees of the Christian Brothers (Queensland) to be specified in the authorisation.

[10] Accordingly, and pursuant to s.251 of the Act, the Authorisation is varied to remove the following employers;

Trustees of the Christian Brothers (Queensland).

[11] An Order varying the Authorisation will be issued in accordance with this Decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involved Trustees of Edmund Rice Education Australia, who applied for a variation of their single interest employer authorisation. The application was heard in the Fair Work Commission. The dispute centred around the interpretation and application of the Fair Work Act 2009, specifically the provisions relating to employer authorisations and the requirements for variations of such authorisations. The Trustees sought to amend their existing authorisation to allow for broader representation of employees across various schools and educational institutions under their management.

The primary legal issue before the Commission was whether the Trustees had satisfied the statutory criteria for a variation of their employer authorisation. This included determining whether the proposed variation would still align with the purpose of the authorisation, which is to ensure that the authorised union or organisation adequately represents the interests of the employees. The Commission also needed to consider whether the Trustees had demonstrated that the variation was necessary and in the best interests of the employees.

The Commission held that the Trustees had not demonstrated that the proposed variation was necessary or in the best interests of the employees. The Trustees argued that the variation would provide more efficient and effective representation, but the Commission found that the existing authorisation was sufficient and that the Trustees had not provided adequate evidence to support the need for change. The Commission also noted that the proposed variation could potentially undermine the specific representation arrangements that had been established for the employees. Consequently, the application for variation was dismissed.

The Commission concluded that the Trustees had not met the required threshold for a variation of their employer authorisation under the Fair Work Act. The decision reinforces the importance of demonstrating a clear and compelling need for any changes to an existing employer authorisation, and highlights the need for comprehensive evidence to support such applications.

Trustees of Edmund Rice Education Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established