s.248 - Single interest employer authorisation

Application by Annie Dennis Children's Centre Inc. and Others

Application for a proposed single interest employer authorisation

• [1] This matter concerns an application for a single interest employer authorisation made by 55 employers under s.248 of the Fair Work Act 2009 (Cth). A single interest employer authorisation will allow the applicant employers to bargain together for a proposed multi-employer enterprise agreement, pre-emptively entitled the Professional Community Standard 2024.

• [2] All the applicant employers (referred to collectively in this decision as "the Employers") operate community childcare facilities in Victoria and are represented by the Community Child Care Association (CCCA). A full list of the Employers will be attached to the authorisation.

• [3] The proposed agreement will cover the Employers and their employees who are currently covered by the Children Services Award 2010 (MA000120) and the Educational Services (Teachers) Award 2020 (MA000077). The proposed agreement will not apply to employees covered by the following enterprise agreements:
  • Victorian Early Childhood Teachers and Educators Agreement 2020 (or its successors);
  • Victorian Early Education Agreement 2021 (or its successors);
  • Victorian Early Childhood Agreement 2021 (or its successors);
  • Early Education Employees Agreement 2020 (or its successors).

• [4] The employees covered by the proposed authorisation are currently covered by an earlier multi-employer agreement: Professional Community Standard 2021 (AE516886). The nominal expiry date of the Professional Community Standard 2021 is 31 December 2023.

• [5] The application notes that 21 of the 55 Employers employ workers that are covered by another single interest authorisation relating to the proposed Victorian Early Childhood Teachers and Educators Agreement 2024 (see PR775629, issued in [2024] FWC 1447). Those employees are explicitly excluded from the present application and proposed authorisation.

• [6] The Australian Education Union (AEU) and the United Workers' Union (UWU) represent employees who will be covered by the proposed Authorisation and enterprise agreement. The UWU has advised the Commission that it supports the application, and the AEU has advised that it does not oppose it. Neither union took issue with the submissions and materials provided by CCCA nor sought to provide any evidence. As such I have determined this matter based upon the materials filed by CCCA on behalf of the Employers.

• [7] I have decided to grant the application and have separately issued the Authorisation as sought. I will briefly state below my reasons for doing so.

• [8] While the FW Act has previously provided for single interest authorisations, 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).

• [9] Sections 248 to 250 of the FW Act now provide:

(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:

(b) a bargaining representative of an employee who will be covered by the agreement.

(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

(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

(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.

(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

(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.

(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.

(2) The requirements of this subsection are met if the employers carry on similar business activities under the same franchise and are:

(b) related bodies corporate of the same franchisor; or

(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:

(c) the nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises.

(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.

(3AC) For the purposes of calculating the number of employees referred to in paragraph (1AA)(b), (1B)(a) or (3AB)(b):

(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.

(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

(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."

• [10] The requirements for making an authorisation under s.249 of the FW Act vary, depending upon the nature of the application and the circumstances of the employers involved. In the present case, the applicants are employers who seek to bargain together and so the "additional" requirements of s.249(1A) apply. It follows that the terms of s.249(1B) and consequential provisions do not apply.

• [11] At the time the application was made five of the Employers employed 50 or more employees. This means 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. In any event I am satisfied about those matters based upon CCCA's materials.

• [12] 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.

• [13] The application was made by the Employers who 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 (per s.248(2)(c)). I am satisfied that the requirements of ss.248 and 249(b)(i) have been met.

Are at least some of the employees who will be covered by the Agreement represented by an employee organisation?

• [14] I am satisfied that at least some of the employees that will be covered by the agreement are represented by an employee organisation (per s. 249(1)(b)(i)). The Employers employ one or more persons who are a member of, and are represented by, the AEU or UWU.

Have the Parties had the opportunity to express their views?

• [15] I am satisfied that the Employers and the AEU and UWU as the bargaining representatives of the employees have had the opportunity to express their views on the proposed authorisation (per s.249(1)(b)(ii)).

• [16] I am satisfied that the employers that will be covered by the agreement have agreed to bargain together, and that no person has coerced or threatened to coerce any of the Employers to agree (per s.249(1A)).

Have the requirements of either ss.249(2) or 249(3) been met?

• [17] In this matter s.249(3) applies. As such the Employers must meet the common interest and the 'not contrary to the public interest' requirements.

• [18] In Application by UWU, AEU and IEU [2023] FWCFB 176 at [34] the Full Bench said the following in relation to the expression 'common interests' in s.243(1)(b)(ii) in the context of an application for a supported bargaining authorisation:

"...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."

• [19] Noting the different role to be played by the "non-exhaustive lists" of common interests that are expressed in the two sections involved, the notion of what may be common interests in the above approach is of guidance (see also Independent Education Union of Australia v Catholic Education Western Australia Limited and others [2023] FWCFB 1177 at [31]).

• [20] I am satisfied that the Employers have clearly identifiable common interests (per s.249(3)(a)). Amongst other matters, the following factors identified in the application confirm that finding:

• Geographical Location: Each Employer operates an early childhood education and care service in the State of Victoria.

• Shared Regulatory Regime: The Employers all operate under a common regulatory regime, namely the National Quality Framework (Framework), consisting of the Education and Care Services National Law Act 2010 (Cth) as adopted by the state of Victoria, and the Education and Care Services Regulations 2011 (Cth). The Framework is regulated and managed by the Australian Children's Education & Care Quality Authority.

• Common Funding Arrangements: Each Employer operates an early childhood long day care service or occasional care service in Victoria. They are all substantially funded by the Federal Government's Child Care Subsidy System, which is administered through the Department of Education and Services Australia and is underpinned by the Family Assistance Law. The Family Assistance Law is a collective term that refers to the following legislative instruments: A New Tax System (Family Assistance) Act 1999, A New Tax System (Family Assistance)(Administration) Act 1999, Family Assistance Legislation Amendment (Jobs for Families Child Care Package) Act 2017, Family Assistance Legislation Amendment (Cheaper Child Care) Act 2022, Child Care Subsidy Minister's Rules 2017 and Child Care Subsidy Secretary's Rules 2017.

Each Applicant Employer is an 'approved provider' for the purposes of the Child Care Subsidy System, and consequently are approved to operate their services in Victoria and deemed suitable to ensure the health, safety, wellbeing and educational outcomes of children in accordance with the Framework.

The Employers are also intending to apply for and receive the Early Childhood and Care Worker Retention Grant, for which they must demonstrate that they can apply the minimum pay rates through an eligible workplace instrument. The proposed Professional Community Standard 2024 is intended to be made to meet this requirement.

The Employers are also eligible to apply for and receive 'Best Start, Best Life' funding from the Victorian Government to reduce the cost of 3 and 4-year-old kindergarten programs in long day care services.

• Shared purpose and collaborative approach: The Employers are all small, not-for-profit services that operate to meet the needs of their local community and do not commercially compete with other community services. Such services often collaborate with one another through local networks to support their operations, management practices and programming.

• Lack of dedicated human resources and industrial relation expertise: The Employers each have limited or no dedicated human resources or industrial relations expertise and are managed by volunteers, parent committees or management boards.

• Terms and conditions of employment in those enterprises: The Employers operate in a predominately award covered industry and share common terms and conditions of employment underpinned by the Children's Services Award 2010 and the Educational Services (Teachers) Award 2020. The majority of the Employers have been covered by the Professional Community Standard 2021 and its predecessor agreements.

• [21] 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 (per s.249(3)(b) and see Australian Municipal, Administrative, Clerical and Services Union v Central Goldfields Shire Council, Ararat Rural City Council [2024] FWCFB 444 at [69] to [80]).

Do the Employers have reasonably comparable operations and business activities?

• [22] 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 Employers are reasonably comparable with those of the other employers that will be covered by the Agreement.

• [23] Having regard to the factors listed above, I am satisfied of this requirement. Of particular relevance is the size and nature of each applicant Employer, the general lack of dedicated human resources or industrial relations expertise and the relevant regulatory and funding schemes.

• [24] Taking into account factors listed above, it would not be practicable or appropriate for each of the Employers to bargain with their employees for separate enterprise agreements.

• [25] 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.

• [26] The proposed authorisation specifies each of the matters required by s.250(1) of the FW Act.

• [27] The findings made apply to all of the Employers and for the purposes of s.250(2) of the FW Act I am satisfied that each should be specified in the Authorisation.

• [28] The circumstances contemplated in ss.250(3) and (4) do not apply.

• [29] Given my satisfaction of the relevant requirements, I am obliged to issue the Authorisation under s.249(1) of the FW Act.

• [30] The Authorisation has been issued separately in PR783317.

• [31] Pursuant to s.249(4) of the FW Act, this Authorisation comes into operation on the day it is made (15 January 2025) 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.

Printed by authority of the Commonwealth Government Printer

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