Fair Work Act 2009

s.248 - Single interest employer authorisation

Application for a single interest employer authorisation regarding a proposed multi - enterprise agreement for Victorian TAFE institute employers - authorisation made.

• [1] An application has been made by the Australian Education Union (AEU), through its Victorian Branch, under s 248 of the Fair Work Act 2009 (Cth) (Act) for a 'single interest employer authorisation'. The authorisation is sought in respect of bargaining for a proposed multi-enterprise agreement (the proposed agreement) that will cover certain specified employees across 12 'Technical and Further Education' institutes (TAFEs) in Victoria.

• [2] The respondent employers consent to the making of the application sought by the AEU.

• [3] By its Further Amended application, the AEU intends to adopt the same coverage as an existing multi-enterprise agreement, namely the Victorian TAFE Teaching Staff Agreement 2018[1] (the current agreement). The current agreement was approved on 12 October 2018, commenced operating from 19 October 2018, and has a nominal expiry date of 11 October 2022.[2] The current agreement continues to apply to the respondent employers and employees. The AEU and the National Tertiary Education Union (NTEU) are covered by the current agreement.

• [4] I briefly note that in the current agreement, one of the 12 employers listed was 'Federation Training'. In the employers listed in the AEU's application, the entity 'Gippsland Institute of Technical and Further Education' (Gippsland TAFE) is referred to in place of 'Federation Training'. The parties confirmed, and I am satisfied, that this difference was solely as a result of a change in name from Federation Training to Gippsland TAFE.

• [5] On 27 November the parties were advised that, having received no request to be heard, I intended to determine the matter on the papers, which I have now done.

• [6] Section 249 of the Act sets out the circumstances in which the Commission "must" make a single interest employer authorisation in relation to a proposed enterprise agreement. A number of significant amendments were made to s 249 of the Act by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, which relevantly commenced on 6 June 2023. A number of those changes were discussed in the recent Full Bench decision, Independent Education Union of Australia v Catholic Education Western Australia Limited & Ors [2023] FWCFB 177, which I gratefully refer to and concur with.

• [7] It suffices to say that, following those legislative amendments, there are different pathways through s 249, in which different issues arise and with potentially different levels of complexity. By way of example, one pathway is determined by whether the employers are the applicant. If the employers are not the applicant, another pathway concerns whether the employers consent to the application. A further pathway is where the application deals with "franchisees", on the one hand, or are said to be "common interest employers" on the other.

• [8] In the present case, the application was made by the AEU, upon the consent of the employers, and concerns "common interest employers". The relevant parts of s 249 are therefore as follows:

"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

Additional requirements for application by bargaining representative

(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."

• [9] Section 249A of the Act imposes a restriction on making single interest employer authorisations if the agreement would cover employees in relation to general building and construction work. On the facts before me, s 249A is not engaged.

• [10] A statement of agreed facts (ASOF) was filed by the AEU and the respondent employers. I accept the matters in it and I refer to aspects of it below. No other evidence was filed by any other interested party.

• [11] The respondent employers are each national system employers within the meaning of the Act. The AEU is an employee organisation within the meaning of the Act.

Section 248(1) and (2), and 249(1)(a) - application formalities

• [12] For the purposes of s 249(1)(a), an application for the authorisation has been made, namely by the AEU. The application was made by the AEU in its capacity as a bargaining representative of an employee who will be covered by the proposed agreement.

• [13] The employees and employers specified in the application for the purpose of s 248(2)(a) - (b) are those listed in Annexure B to the AEU's Further Amended application dated 9 November 2023 and which are replicated in Attachment 1 to these reasons.

• [14] The application identifies the Victorian TAFE Association as the anticipated person who will be nominated by the employers to make applications under the Act if the authorisation is granted: see also ASOF, [5].

• [15] I am satisfied that at least some of the employees who will be covered by the proposed agreement are represented by the AEU: ASOF, [3](b).

• [16] I am satisfied that the employers and the bargaining representatives of the employees of the respondent employers have had the opportunity to express their views, if any, on the authorisation: ASOF, [8] - [14].

• [17] I also briefly note that, at the time an application is made under s 248 for an authorisation, it may not be particularly clear just who is a "bargaining representative" of employees. While the AEU and NTEU are perhaps obvious bargaining representatives, given their coverage by the current agreement, the parties took what I describe as a 'for avoidance of doubt' approach and served the application and directions in this matter upon a number of individuals, on the basis that they might be 'bargaining representatives' within the meaning of s 249(1)(b)(ii). I need not determine their actual status but, regardless, I am satisfied that all potentially relevant bargaining representatives have been given an opportunity to express their views in accordance with the directions I issued.

• [18] Of the cohort served, the NTEU expressed views to the Commission.

Section 249(1)(b)(iv) - whether the employers consent

• [19] The application was not made by the employers, hence sections 249(1)(b)(iii) and (1A) are not applicable.

• [20] As to s 249(1)(b)(iv), that provision requires satisfaction that each employer has consented to the application or is covered by subsection 249(1B). I am satisfied that the employers have consented to the application: ASOF, [6].

• [21] The requirements of s 249(1B) - which deal with asserting whether a majority employees want to bargain - are not applicable and, therefore the requirements of s 249(1C) - (1D) also do not apply.

Section 249(1)(b)(v) and (3)-(3AB) - common interest employer requirements

• [22] Section 249(1)(b)(v) directs attention to the satisfaction of the requirements of subsections 249(2) or (3). Subsection 249(2) - which deals with franchisees - is not applicable.

• [23] Subsection 249(3), which is applicable, has two limbs - a "common interest" limb and a "public interest" limb. Dealing with the first of those, s 249(3)(a) requires satisfaction of the employers having clearly identifiable common interests. Section 249(3A) provides for matters that "may" be relevant to determining whether there is a common interest.

• [24] Section 249(3AB) establishes a presumption that the requirements of s 249(3) - both limbs - are met "unless the contrary is proved". An element of the presumption in s 249(3AB) is that it only applies to relevant employers who employ "50 employees or more" at the time the application was made. While s 249(3AC) sets out how such employees are to be calculated for the purpose of that section, there was no dispute that each of the respondent employers employed "at least" that number and I am satisfied that is the case: ASOF, [28].

• [25] There is no material before me that would displace the presumption in s 249(3AB) that applies and, to the contrary, the parties relied upon the presumption. Accordingly, I am satisfied of the requirements of both limbs of s 249(3).

• [26] While it is not strictly necessary for me to add to those findings, I would briefly record that the factual material is otherwise indicative of the presumption being sound regarding the requisite "common interest", although I need not express any final view on that matter. Specifically, the geographic location (being Victoria), the regulatory regime (being a substantially common substratum of TAFE regulation, organisation and funding) and common existing terms and conditions of employment through the current agreement are all supportive of a conclusion that the employers have clearly identifiable common interests: ASOF, [16] - [27].

• [27] In a short submission filed by the NTEU, the NTEU contended that the authorisation also ought cover employees who are "Industrial Skills Instructors", in addition to the employees listed in the application. For context, employees by that description were specifically excluded by amendments made to the Further Amended application lodged by the AEU. Industrial Skills Instructors are currently excluded from the operation of the current agreement. The AEU's application, as amended, explicitly sought to conform the coverage of the proposed agreement to the existing state of coverage between the parties, namely that Industrial Skills Instructors will continue to be excluded.

• [28] I am doubtful that any part of ss 249 or 250 provides me with the power to expand the coverage proposed in an application, although s 250 provides some circumstances where a coverage that is narrower than that sought might be specified in an authorisation. Conceivably, an application could be refused if the proposed coverage led to a conclusion that an authorisation would be contrary to the public interest but this is not the case before me and therefore it is unnecessary to say anything further about the matter.

• [29] There was no matter drawn to my attention that indicates it would be contrary to the public interest to make the authorisation, even in the absence of the presumption in s 249(3AB). Observing the double-negative in s 249(3)(b), I am satisfied the requirement that making the authorisation is "not" contrary to the public interest.

• [30] I am satisfied that the requirements of s 249(1)(b)(v) and (3) are met.

Section 249(1)(b)(vi) and (1AA) - whether business activities are reasonably comparable

• [31] Section 249(1)(b)(vi) provides that if (which is the case here) the requirements of s 249(3) are met, then I must be satisfied that the "operations and business activities" of each of the respondent employers are "reasonably comparable" with the other employers to be covered by the proposed agreement.

• [32] Section 249(1AA) sets out a presumption that the above requirement is satisfied "unless the contrary is proved". There is no material before me that would displace the presumption in s 249(1AA) on the basis that "the contrary is proved". Accordingly, I am satisfied of the requirements of s 249(1)(b)(vi). As above, while it is not strictly necessary for me to add to those findings, I would briefly record that the factual material is otherwise indicative of the presumption being sound, although I need not express any final view on that matter: ASOF, [16] - [27] and noting there is some overlap with the concepts reflected in s 249(3).

• [33] As with s 249(3AB), the presumption is s 249(1AA) only applies to employers employing 50 or more employees. For the reasons provided above, I am satisfied of the matters in s 249(1AA) and that the requirements of s 249(1)(b)(vi) are met.

• [34] As I am satisfied the requirements in s 249, as relevantly set out above, are met and that the exclusion in s 249A is not applicable, it follows that an authorisation must be made and I will do so.

• [35] Section 250 provides than an authorisation 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.

• [36] The matters relating to s 250(a) - (c) have been referred to above. At the time of the application and this decision, there were no matters prescribed by the procedural rules for the purpose of s 250(d). Sections 250(2) - (4) provide for circumstances where an authorisation may be made for only some of the employers or employees specified in the application sought - none of those matters are relevant to the application before me.

• [37] By s 249(4)(a), an authorisation comes into operation on the day in which it is made, which is the date of this decision.

• [38] The authorisation[3] giving effect to this decision will be issued separately.

Attachment 1 - employers and employees to be covered

1. The employers that will be covered by the proposed agreement are:

d. Gippsland Institute of Technical and Further Education

1. The employees to be covered by the proposed enterprise agreement are:

(a) The employees of the employers who teach, manage, coordinate and/or develop accredited and non-accredited programs that are:

i. Vocational education and training programs leading to qualifications recognised at AQF levels 1 to 6 (Advanced Diploma) and level 8 (VET Graduate Certificate and VET Graduate Diploma);

ii. English Language Intensive Courses for Overseas Students (ELICOS) and Teaching English to Speakers of Other Languages programs (TESOL);

iv. English language, literacy and numeracy programs;

v. English language teaching in migrant education programs;

vi. Community and adult education programs not leading to qualifications recognised by the AQF;

vii. Foundation studies or bridging courses where the program or course is preparatory to or articulates with programs of teaching leading to higher education qualifications recognised within the AQF;

viii. Victorian Certificate of Applied Learning (VCAL); and/or

(b) but not including the following employees of the employers:

i. an employee of an Employer for whom the majority of their teaching, management, coordination and/or development work is in undergraduate and/or postgraduate programs leading to the conferring of degrees or other higher education qualifications recognised within the AQF levels 6 (Associate Degree) to 10, other than in respect of vocational education and training programs leading to qualifications recognised at AQF level 6 (Advanced Diploma) and level 8 (VET Graduate Certificate and VET Graduate Diploma); or

(ii) an employee of an Employer who holds a position that is classified as, or equivalent to, a CEO position or Executive position pursuant to Ministerial Directions or Orders issued under the Education and Training Reform Act 2006 (Vic); or

[2] [2018] FWCA 6341

[3] PR767224

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