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 for Regional Water Authority employers - authorisation made.

• [1] An application has been made by the Australian Municipal, Administrative, Clerical and Services Union (ASU) under s 248 of the Fair Work Act 2009 (Cth) (Act) for a 'single interest employer authorisation' (SIEA). The authorisation is sought in respect of bargaining for a proposed single interest employer agreement (the proposed agreement) that will cover Central Highlands Region Water Corporation and South Gippsland Region Water Corporation (Regional Water Authorities; the employers).

• [2] Central Highlands Region Water Corporation is currently covered by the Central Highlands Water Enterprise Agreement 2021, which has a nominal expiry date of 27 September 2025. South Gippsland Region Water Corporation is currently covered by the South Gippsland Region Water Corporation Enterprise Agreement No.8 2021, which has a nominal expiry date of 19 June 2025.

• [3] The employers, though their representative, advised of their consent to the application. APESMA also advised it had no objections to the application.

• [4] 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.

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

• [5] For the purposes of s 249(1)(a), an application for the authorisation has been made, namely by the ASU. The application was made by the ASU in its capacity as a bargaining representative of an employee who will be covered by the proposed agreement (s 248(1)(b)).

• [6] The employees and employers specified in the application for the purpose of s 248(2)(a) - (b) are the employers identified at [1] above, and the employees of those employers.

• [7] The application states that the employers to be covered have not nominated a person to make applications under the Act if the authorisation is made (s 248(2)(c)).

• [8] I am satisfied that at least some of the employees who will be covered by the proposed agreement are represented by the ASU.

• [9] 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.

• [10] In addition to the ASU, APESMA was noted on the application as an employee organisation bargaining representative of employees who would be covered by the proposed multi-enterprise agreement, and confirmed to the Commission that it had no objections to the ASU's application: s 249(1)(b)(ii).

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

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

• [12] 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.

• [13] 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

• [14] 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.

• [15] 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.

• [16] 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.

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

• [18] 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 remain satisfied of the requirement that making the authorisation is "not" contrary to the public interest.

• [19] 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

• [20] 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.

• [21] 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).

• [22] As with s 249(3AB), the presumption in 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.

• [23] 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.

• [24] Section 250(1) provides that 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.

• [25] The matters relating to s 250(1)(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(1)(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.

• [26] 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.

• [27] The authorisation[1] giving effect to this decision will be issued separately.

[1] PR792381.

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