Tyndale Group of Christian Schools Limited T/A Tyndale Group of Christian Schools and Others
[2024] FWC 3199
•3 DECEMBER 2024
| [2024] FWC 3199 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.248 - Application for a single interest employer authorisation
Tyndale Group of Christian Schools Limited T/A Tyndale Group of Christian Schools and Others
(B2024/1352)
| DEPUTY PRESIDENT HAMPTON | ADELAIDE, 3 DECEMBER 2024 |
Application for a proposed single interest employer authorisation.
This matter concerns an application by 4 employers, namely:
· Tyndale Group of Christian Schools Limited T/A Tyndale Group of Christian Schools (ABN 72 671 802 323) (Tyndale Group);
· Tyndale Christian School – Salisbury East Inc T/A Tyndale Christian School – Salisbury East (ABN 43 329 562 439);
· Tyndale Christian School – Strathalbyn Incorporated T/A Tyndale Christian School – Strathalbyn (ABN 81 829 804 365); and
· Tyndale Christian School – Murray Bridge Incorporated T/A Tyndale Christian School – Murray Bridge (ABN 65 162 431 528).
I will refer to these employers collectively as the Applicant Employers. Three of the Applicant Employers directly operate Christian Schools in South Australia. Tyndale Group is, in effect, the central office for the Tyndale schools and coordinates and provides services to each of the schools.
The Applicant Employers seek a single interest employer authorisation under s.248 of the Fair Work Act 2009 (Cth) (FW Act). This provision is found in Division 10 of Part 2-4 of the FW Act. The Authorisation would permit the Applicant Employers to bargain together for a proposed multi-employer enterprise agreement to replace the Tyndale Christian School Enterprise Agreement 2023[1], Tyndale Christian School – Strathalbyn Enterprise Agreement 2023[2] and Tyndale Christian School – Murray Bridge Enterprise Agreement 2023[3] (2023 Agreements), which presently cover all the eligible employees and have a nominal expiry date of 31 January 2025.
The employees to be covered by the proposed Authorisation and enterprise agreement are, in effect:
· Teachers;
· Education Support Officers;
· School Support and Administration staff;
· School Wellbeing staff;
· Grounds staff; and
· Central Office Administration staff.
The Independent Education Union (IEU) represents employees who would be covered by the proposed Authorisation and enterprise agreement and supports the application.
Given the absence of any objections and any request for a hearing to be conducted, the Commission has determined this matter based upon the evidence before it. I have granted the application and now issue the Authorisation as sought. My reasons for doing so are outlined below.
The objects of Part 2-4 of the FW Act are set out in s.171 as follows:
“171 Objects of this Part
The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and
(b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:
(i) making bargaining orders; and
(ii) dealing with disputes where the bargaining representatives request assistance; and
(iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay.”
While the Act has previously provided for single interest authorisations,[4] the basis and operation of the authorisations was significantly amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (SJBP Act).
Sections 248 to 250 of the FW Act now provides:
“248 Single interest employer authorisations
(1) The following may apply to the FWC for an authorisation (a single interest employer authorisation) under section 249 in relation to a proposed enterprise agreement that will cover two or more employers:
(a) those employers;
(b) a bargaining representative of an employee who will be covered by the agreement.
(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.
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.
249A Restriction on making single interest employer authorisations
The FWC must not make a single interest employer authorisation in relation to a proposed enterprise agreement if the agreement would cover employees in relation to general building and construction work.
250 What a single interest employer authorisation must specify
What authorisation must specify
(1) A single interest employer authorisation in relation to a proposed enterprise agreement 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;
(d) any other matter prescribed by the procedural rules.
Authorisation may relate to only some of employers or employees
(2) If the FWC is satisfied of the matters specified in subsection 249(2) or (3) (which deal with franchisees and common interest employers) in relation to only some of the employers that will be covered by the agreement, the FWC may make a single interest employer authorisation specifying those employers and their employees only.
(3) The FWC may make a single interest employer authorisation that does not specify one or more employers specified in an application for the authorisation, and the employees (the relevant employees) of those employers specified in that application, if the FWC is satisfied that:
(a) the employers are bargaining in good faith for a proposed enterprise agreement that will cover the employers and the relevant employees, or substantially the same group of the relevant employees; and
(b) the employers and the relevant employees have a history of effectively bargaining in relation to one or more enterprise agreements that have covered the employers and the relevant employees, or substantially the same group of the relevant employees; and
(c) on the day that the FWC will make the authorisation, less than 9 months have passed since the most recent nominal expiry date of an agreement referred to in paragraph (b).
(4) If the effect of subsection (3) is that no employers would be specified in the authorisation, the FWC may refuse the application for the authorisation.”
The Explanatory Memorandum to the SJBP Act stated that the purpose of the amendments leading to these revised provisions in the following terms:
“1006. Part 21 of Schedule 1 to the Bill would amend Division 10 of Part 2-4 of the FW Act to remove unnecessary limits on access to single interest employer authorisations and simplify the process for obtaining them, and facilitating bargaining by:
·removing the requirement for two or more employers with common interests who are not franchisees to obtain a Ministerial declaration before applying a single interest employer authorisation;
·providing for employee bargaining representatives to apply for a single interest employer authorisation to cover two or more employers, subject to majority support of the relevant employees;
·permitting employers and employee bargaining representatives to apply to vary a single interest employer authorisation to add or remove the name of an employer from the authorisation, subject to meeting specified requirements; and
·inserting new Subdivision AD—Variation of single interest employer agreement to add employer and employees, into Division 7 of Part 2-4 of the FW Act to permit employers and employee organisations to apply to the FWC for approval of a variation to extend coverage of an existing single interest employer agreement to a new employer and its employees, subject to meeting specified requirements.”[5]
… …
“1066. New subsection 249(1) would delineate the requirements of which the FWC must be satisfied before making a single interest employer authorisation depending on whether the application for the authorisation was made by the employer and its employees, or an employee organisation. It would also clarify the requirements of which the FWC must be satisfied depending on whether the single interest employer authorisation is to operate in respect of two or more common interest employers or franchisees. The term ‘common interest employers’ would be introduced by these amendments and used to identify those employers who may be included in a single interest employer authorisation but who are not franchisees.”[6]
The requirements for making an authorisation under s.249 of the FW Act vary, depending upon the nature of the applicant and the circumstances of the employers involved. In the present case, the applicants are the employers who seek to bargain together and so the “additional” requirements of s.249(1A) apply. It follows then that the terms of s.249(1B) and consequential provisions do not apply.
Three of the Applicant Employers each employ more than 50 employees at the time the application was made. This would mean that the ‘rebuttable presumptions’ concerning the common interest and public interest requirements of s.249(3), and the reasonable comparability of operations and business activities of the employers under s.249(1)(b)(vi), apply. I observe that in this case I would, in any event, be satisfied about those matters based upon the common materials before the Commission.
In deciding to make the authorisation, I am satisfied that all the relevant requirements under ss.249 and 249A of the FW Act have been met. I briefly deal with each in turn.
Was a valid application made?
An application was made by the Applicant Employers and they would be covered by the (proposed) agreement. The application specifies the required matters, including the person nominated by the employers to make applications under the FW Act if the Authorisation is made.[7] I am satisfied that the requirements under ss.248 and 249(b)(i) of the FW Act have been met.
Are at least some of the employees who will be covered by the Agreement represented by an employee organisation?
I am satisfied that at least some of the employees that will be covered by the agreement are represented by an employee organisation.[8] The Applicant Employers employ one or more persons who are a member of, and are represented by, the IEU.[9]
Have the Parties had the opportunity to express their views?
I am satisfied that the Applicant Employers and the IEU as the bargaining representative of the employees have had the opportunity to express their views on the proposed authorisation.[10]
The relevant parties have provided submissions confirming their views, and all have supported the authorisation being made.
Have the Applicant Employers 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, any of the employers to so agree.[11]
Have the requirements of either ss.249(2) or 249(3) been met?
It is s.249(3) of the FW Act that applies here. That is, the Applicant Employers must meet the common interest and the ‘not contrary to the public interest’ requirements.
In Application by UWU, AEU and IEU,[12] the Full Bench said the following in relation to the expression ‘common interests’ in s.243(1)(b)(ii) in connection with applications for supported bargaining authorisations:
“…the expression ‘common interests’ used in s 243(1)(b)(ii) in connection with the employers the subject of an authorisation application is one of wide import, and on its ordinary meaning extends to any joint, shared, related or like characteristics, qualities, undertakings or concerns as between the relevant employers. The diversity of the non-exhaustive list of ‘examples’ of common interests in s 243(2) gives contextual support to the breadth of meaning which we assign to the expression. The common interests must be ‘clearly identifiable’, that is, plainly discernible or recognisable, but need not be self-evident.”
Noting the different role to be played by the “non-exhaustive lists” of ‘common interests’ that are expressed in the two sections involved,[13] the notion of what may be common interests in the above approach is of guidance.
I am satisfied that the Applicant Employers have clearly identifiable common interests.[14] Amongst other matters, the following factors identified in the application confirm that finding:
· Unified Governance: All schools and the Central Office staff are governed by a single Board under the Constitution of the Tyndale Group. This unified governance structure ensures that strategic decisions, policies, and goals are aligned across all institutions within the group.
· Common Employment Arrangements and Funding: The schools share common employment arrangements and funding sources, indicating that their operational and financial management is interconnected. This alignment in employment practices supports the standardisation of employee entitlements and conditions across the group.
· Consistent Approach to Enterprise Agreements: Since 2015, Tyndale Christian Schools have been negotiating enterprise agreements for each of the three schools. Although each school presently has its own enterprise agreement, these agreements have substantially the same entitlements and remuneration. This shows a deliberate effort to maintain consistency in employee conditions across all schools.
· Collaboration with Employee Representatives: The enterprise agreements have been negotiated in collaboration with employee representatives and the IEU, reflecting a shared commitment to employment practices and conditions that benefit all employees in the group.
· Shared Vision for the Future: The employers have a common interest in creating streamlined and consistent employment terms that reflect the shared goals of the schools and their commitment to the well-being of all staff members.
Having regard to all of the circumstances of this matter I am also satisfied that it is not contrary to the public interest to make the Authorisation.[15]
Do the Applicant Employers have reasonably comparable operations and business activities?
As the requirements of s.249(3) have been met, s.249(1)(b)(vi) of the FW Act requires that the operations and business activities of each of the Applicant Employers are reasonably comparable with those of the other employers that will be covered by the Agreement. The following material before the Commission supports such a finding:
· Collaborative Approach: All Tyndale schools operate collaboratively, focusing on maximising efficiencies and effectiveness as a group rather than competing with each other.
· Centralised Leadership and Group-wide Implementation: The ten directors in Central Office oversee portfolios that extend across all schools within the group, working closely with each Principal to implement initiatives group-wide. This centralised leadership model ensures that operational initiatives, resource development, and professional practices are consistent across all schools.
· Shared Professional Development Programs: The Tyndale Group has a unified professional development program covering various key areas, such as Work Health and Safety compliance, leadership development, curriculum initiatives, and personal wellbeing. Staff from different schools regularly participate in these opportunities with colleagues in other schools, ensuring consistent standards and practices are maintained throughout the group.
· Unified Policies: There is a single set of policies that apply to all three schools, with updates being developed at the group level and then distributed to each school. This standardised approach to policy development and implementation ensures that all schools operate under the same guidelines, further aligning their business activities.
· Replicated Reporting Structure and Strategic Input: Each Principal reports directly to the CEO and is a member of the Group Executive Leadership team, which impacts on strategy and direction for the entire group. This consistent reporting structure ensures that all schools have a say in the group's strategic planning and direction, reinforcing their alignment in operations.
General building and construction work
The Agreement will not cover employees in relation to general building and construction work. This meets the requirements of s.251A of the FW Act.
Other matters
The proposed authorisation specifies each of the matters required by s.250(1) of the FW Act.
The findings made apply to all of the Applicant Employers and for the purposes of s.250(2) of the FW Act I am satisfied that each should be specified in the Authorisation.
The circumstances contemplated in ss.250(3) and (4) do not apply.
Conclusions
Given my satisfaction with all of the relevant requirements, I am obliged to issue the Authorisation under s.249(1) of the FW Act.
The Authorisation has been issued separately in PR781424.
Pursuant to s.249(4) of the FW Act, this Authorisation comes into operation on the day it is made (3 December 2024) and will cease to have effect on the earlier of the day on which the proposed enterprise agreement is made or 12 months after the date of this Authorisation, subject to any extension pursuant to s.252.
The Commission stands ready to assist the parties with the bargaining for the proposed multi-employer agreement should that be sought, such as under a s.240 application or a joint request to conduct a collaborative approaches process to utilise interest-based bargaining.
DEPUTY PRESIDENT
Hearing details:
Determined on the materials and submissions filed.
[1] AE522793.
[2] AE522792.
[3] AE522791.
[4] Sections 247 – 252 of the FW Act as it stood prior to the operation of the SJBP Act.
[5] Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, Revised Explanatory Memorandum at [1006].
[6] Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, Revised Explanatory Memorandum at [1066].
[7] Section 248(2)(c) of the FW Act – confirmed to be the Chief Executive Officer of Tyndale Group of Christian Schools Limited.
[8] Section 249(1)(b)(i) of the FW Act.
[9] Statement of Agreed Facts at [2].
[10] Section 249(1)(b)(ii) of the FW Act.
[11] Section 249(1A) of the FW Act.
[12] [2023] FWCFB 176 at [34] as applied to a single interest employer authorisation application in Independent Education Union of Australia v Catholic Education Western Australia limited and others[2023] FWCFB 1177 at [31].
[13] Section.243(2) provides examples of common interests whereas in s.249(3A) the factors are matters that may be relevant to determining whether the employers have a common interest.
[14] Section 249(3)(a) of the FW Act.
[15] Section 249(3)(b). See more generally the discussion of this aspect in Australian Municipal, Administrative, Clerical and Services Union v Central Goldfields Shirs Counsil, Ararat Rural City Council[2024] FWCFB 444 at [69] to [80].
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