s.248 - Single interest employer authorisation

Australian Municipal, Administrative, Clerical and Services Union

Application for a single interest employer authorisation regarding a proposed multi - enterprise agreement - jurisdictional objections - section 249(1D) - whether some employers have 'agreed in writing' to bargain for a single-employer agreement - objection dismissed.

• [1] By an application made on 20 March 2025, the Australian Municipal, Administrative, Clerical and Services Union (ASU) seeks, under section 248 of the Fair Work Act 2009 (Cth) (Act), for a 'single interest employer authorisation' to be made. The effect of the authorisation, if granted, is to permit bargaining for a multi-employer enterprise agreement. The ASU's application, as currently amended, names ten employers, which are metropolitan local councils in Victoria. At the time the ASU lodged its application, each of those councils was covered by a single-enterprise agreement, whose last nominal expiry date was 4 July 2025 (for Hobsons Bay City Council).

• [2] Section 249 of the Act sets out the circumstances in which the Commission must make a single interest employer authorisation. There are a number of different pathways through section 249 in which different issues arise and with potentially different levels of complexity. Where (as here) a union is the applicant, one pathway concerns whether the employers consent to the application or, if not, whether the requirements of section 249(1B) are met (which, in turn, specifies a number of requirements). Another pathway concerns whether there are "common interest employers" or "franchisees" - in this case, the ASU states that there are common interest employers.

• [3] This application concerns a preliminary issue as to whether five of the councils and unions have "agreed in writing", within the meaning of section 249(1D)(b), to bargain for a proposed enterprise agreement that would cover substantially the same group of employees that would be covered by the proposed multi-employer enterprise agreement. The five councils here are Darebin City Council, Hobsons Bay City Council, Hume City Council, Yarra City Council and Brimbank City Council (the 'relevant Councils'). The presence or absence of an agreement in writing of this kind has significance to whether the requirements of section 249(1B) can be met.

• [4] The hearing of the preliminary issue took place on 5 September 2025. Coinciding with the process for dealing with that hearing, there was a secret ballot process in place for a number of the respondent councils. That process was being undertaken in accordance with directions I issued on 13 August 2025 (as amended on 14 August 2025). Voting in accordance with that process took place between 8 and 19 September 2025. On 22 September 2025 by correspondence from the parties, I was subsequently informed of the result of those ballots, which saw employees for Hume City Council, Hobsons Bay City Council, Yarra City Council and Merri-bek City Council voting to support a multi-employer enterprise agreement.

• [5] Those balloting orders did not apply to Brimbank City Council because, at that time, Brimbank City Council had made a single-enterprise agreement with its employees and had also applied to the Commission for approval of that agreement. On 29 August 2025, Commissioner Yilmaz approved that application.[1] While I note that the ASU lodged an application to appeal that decision on 18 September 2025, correspondence from the ASU on 6 October 2025, informed me that the ASU intended to remove Brimbank City Council (and the City of Port Phillip) from the ASU's application. At the time of publishing these reasons, Brimbank City Council had not been removed as a party to the ASU's application before me and, for avoidance of doubt, this decision encompasses Brimbank City Council's jurisdictional objection (although I consider it would make no difference either way for the reasons that follow).

• [6] Finally, I also note that, at the hearing of the matter on 5 September 2025, there was a second live jurisdictional objection pertaining to Darebin City Council only. That objection concerned whether I could conclude, on the basis of a secret ballot vote Darebin Council conducted between 3 - 10 April 2025, that a majority of employees of Darebin City Council did not want to bargain for a multi-enterprise agreement. On 7 November 2025, my chambers received correspondence from the parties in which (by consent) a subsequent secret ballot process would be undertaken for Darebin City Council. I made orders substantially reflecting the consent position proposed by the parties. That correspondence made clear that Darebin City Council no longer pressed the objection I heard on 5 September 2025 concerning its earlier ballot. Accordingly, it is unnecessary to deal with the original objection by Darebin City Council.

Are there agreements in writing to bargain individually?

• [7] One element of section 249 that the Commission "must" be satisfied about is section 249(1)(iv). Section 249(1)(iv) applies to applications, such as this one, where an employee bargaining representative (i.e. union) is the applicant. The requirements of section 249(1)(iv) are satisfied if each employer has consented "or" is covered by section 249(1B). The relevant Councils do not consent. Accordingly, each employer must be "covered" by section 249(1B).

• [8] An employer is covered by section 249(1B) if, among other matters, "subsection (1D) does not apply to the employer" (my emphasis): see section 249(1B)(e).

• [9] There are two circumstances where subsection (1D) might apply to an employer. If either apply, then it cannot be said that subsection (1D) does not apply, such that the employer will not be "covered" by section 249(1B) and the requirements of 249(1) ultimately cannot be met.

• [10] It is the circumstances of subsection (1D)(b) that are relevant here. That subsection provides (emphasis added):

(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."

• [11] The relevant Councils contend that they have respectively "agreed in writing" for the purposes of the above clause and rely on the 'renegotiation clauses' (to adopt the shorthand description used by the parties) of their current enterprise agreements to constitute that agreement. For the relevant Councils, the enterprise agreements are the Darebin City Council Enterprise Agreement 2022-2025 (Darebin enterprise agreement), the Hobsons Bay City Council Enterprise Agreement 2021 (Hobsons Bay enterprise agreement), the Hume City Council Enterprise Agreement (No.8) 2021-2025 (Hume enterprise agreement), and the Brimbank City Council Enterprise Agreement 9, 2021 EA9 (Brimbank Agreement).

• [12] Each of those five enterprise agreements have passed their nominal expiry date, although they continue to apply to the respective Councils and their respective employees, save for Brimbank City Council: section 52 of the Act.

• [13] Each of the enterprise agreements contained renegotiation clauses. To illustrate, the relevant renegotiation clause from the Hobsons Bay enterprise agreement was as follows (emphasis added):

This Agreement shall operate from the first full pay period after the Agreement has been approved by the Fair Work Commission and shall have a nominal expiry date of 4 years after approval.

The parties to this Agreement agree to meet six months prior to the expiration date of this Agreement to commence negotiations of a new Agreement."

• [14] The parties were largely in agreement as to the principles applicable to the interpretation of enterprise agreements[2] and the statute but that was essentially the limit.

• [15] As to the principles governing the interpretation of subsection (1D)(b), both parties referred to a Full Bench consideration of the provision in ASU v Central Goldfields [2024] FWCFB 444; (2024) 335 IR 110 at [52] - [56]. While the ASU embraced the relevant parts of that decision more firmly, no party suggested it was inapplicable or should not be followed and I proceed on that basis.

• [16] Turning then to the divergence between the parties, the parties both proceeded with an analysis of the content of the renegotiation clauses and whether that content met the requirements of subsection (1D)(b). The divergence manifested in two broad topics:
  • The first was whether the subject matter of renegotiation clauses (or some of them), as properly construed, constituted an agreement to bargain for a proposed single-enterprise agreement that would cover the employer and those employees or substantially the same group of those employees.
  • The second, raised by the ASU, was whether a clause in an enterprise agreement can constitute an agreement between an employer and a union for the purposes of subsection (1D).

• [17] It is convenient to deal with the second issue first, because if the answer to that issue is 'no' then the first issue falls away.

• [18] There is no issue that the relevant enterprise agreements are documents "in writing". The issue is whether each such document is an agreement between an employer and a union. I do not consider they are for the purposes of subsection (1D).

• [19] Each of the existing enterprise agreements for the relevant Councils are single-enterprise agreements within the meaning of section 172(2) of the Act. They are not a 'greenfields agreement' within the meaning of section 172(4).

• [20] Section 172(2)(a) provides that an employer may "make an enterprise agreement" with "the employees" who are employed at the time the agreement is made and who will be covered by it. As far as section 172(2)(a) indicates, the making of the enterprise agreement "with" an employer and its employees does not contemplate it is an agreement "with" an employee organisation (i.e. union), as least for the purposes of the statute.

• [21] Section 182 provides further support to the fact that a single-enterprise agreement (other than a greenfields agreement) is not "made" between an employer and a union. As section 181(1) provides, such an enterprise agreement is "made" when relevant employees have been asked to approve the agreement under section 181(1) and a majority of those employees cast a valid vote to approve it.

• [22] The position is, at least arguably, different for a greenfields agreement where (by definition) there are no employees. Section 172(2)(b) contemplates an employer may "make" a greenfields agreement "with" one or more relevant employee organisations. The analysis that follows is not specifically intended to apply to a single-enterprise agreement that is a greenfields enterprise agreement. I will leave that issue to another day, should it need to arise.

• [23] The Councils here rely on the fact that (as is the case), their relevant enterprise agreements describe the unions as "parties" to the enterprise agreements.

• [24] However, as the Full Court noted in Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84; (2014) 222 FCR 152 (Marmara) at [88] (emphasis added):

"88. We do not accept that premise, or the appropriateness of the contractual analogy. Under the FW Act, an enterprise agreement is an agreement in name only. Those who, by s 172(2), are empowered to "make" an enterprise agreement are the employer and "the employees who are employed at the time the agreement is made and who will be covered by the agreement". A contract lawyer would assume that those persons would be parties to the agreement, and that the assent of all of them would be necessary for the agreement to be "made". But the lawyer would be wrong on both counts. The FW Act does not identify the employer, or any employee, as a "party" to an enterprise agreement. Further, notwithstanding the specific empowering terms of s 172, it is not necessary for all the employees who are employed at the time an agreement is made and who will be covered by the agreement to assent to the terms of the agreement. Once a majority of those employees have agreed by voting, the agreement must be sent to the Commission for approval and, if approved, thenceforth applies to all the employees in the relevant group, even those who did not agree, and even those, subsequently taken into employment, who were not part of the relevant group at the time the vote was taken under s 182."

• [25] By contrast, an "agreement" in subsection (1D) identifies a more traditional notion of an inter partes arrangement between at least two specifically identified parties. The persons to whom subsection (1D)(b) might apply must be "the" employer and "an" employee organisation that is entitled to represent the industrial interests of one or more of the relevant employees.

• [26] Despite the language of an "agreed" position in subsection (1D), an agreement here need not be a legally enforceable agreement, although it may be. For an example of a legally enforceable agreement, the employer and an employee organisation might record their agreement in a deed. A less formal agreement (and one unlikely to be legally enforceable outside the remit of subsection (1D)) might be made through an exchange of letters or correspondence[3] which could be an agreement even in the absence of contractual consideration. In any scenario, I consider that a necessary feature of the agreement for the purposes of subsection (1D) is that there is a meeting of the minds or consensus, assessed objectively, between the employer, on the one hand, and at least one employee organisation on the other hand, to the putative agreement.

• [27] One further observation is that an agreement for the purposes of subsection (1D) can be terminated or varied according to its terms, much like other types of formal and informal agreements. If those terms do not permit a revocation of the agreement for, say, a fixed period of time, then I doubt the agreement could be terminated absent agreement between those parties or some other conduct justifying termination, at least for the purposes of subsection (1D). If the parties have specified no term, then I would expect in the ordinary course that the agreement is either revocable at will by giving notice or upon giving reasonable notice.

• [28] Returning then to the enterprise agreements for the five relevant Councils, as the court in Marmara at [89] makes clear, they are enforceable under statute "and not otherwise". Put another way, the Act sets out a mechanism for the enforcement of terms of an enterprise agreement by relevant persons but it does not create or deem or impute the existence of an inter partes agreement between two or more entities who might be described in an enterprise agreement.

• [29] The above conclusions do not preclude the possibility that the employer and an employee organisation might have otherwise adopted, between themselves, the written terms of an enterprise agreement to apply in some way other than by force of the Act. Whatever the circumstances that might give rise to that theoretical position, it was not advanced by the Councils here.

• [30] For the foregoing reasons, the renegotiation terms of the enterprise agreements for the relevant Councils do not establish that those Councils have "agreed in writing" with one or more of the unions listed in those enterprise agreements for the purposes of subsection (1D).

• [31] It is therefore unnecessary to deal with the alternative element of this dispute which is whether the renegotiation clauses, properly construed, evince an agreement to bargain for a proposed single-enterprise agreement that would cover the employer and those employees or substantially the same group of those employees.

• [32] The jurisdictional objection raised by the relevant Councils is dismissed.

B. Bromberg of Counsel, instructed by Maurice Blackburn Lawyers, for the ASU.

L. Howard of Counsel, instructed by Maddocks, for the objecting Respondents.

[1] Application by Brimbank City Council [2025] FWCA 2923.

[2] See, for example, Ridd v James Cook University [2020] FCAFC 123; (2020) 278 FCR 566 at [65]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 at [197].

[3] ASU v Central Goldfields [2024] FWCFB 444; (2024) 335 IR 110 at [60].

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