s.248 - Application for a single interest employer authorisation

Australian Municipal, Administrative, Clerical and Services Union

Application for a single interest employer authorisation regarding a proposed multi - enterprise agreement - Victorian metropolitan local councils - authorisation made.

• [1] The Australian Municipal, Administrative, Clerical and Services Union (ASU) has applied, under section 248 of the Fair Work Act 2009 (Cth) (Act), for a 'single interest employer authorisation' to be made.

• [2] The application is supported by a Statement of Agreed Facts (SOAF) dated 18 December 2025, filed jointly on behalf of the ASU and the respondent employers, which are metropolitan local councils in Victoria. The application is now presented as a consent position on all matters of substance, although this was not always the case. Aspects of the procedural history are described in an earlier jurisdictional ruling on the matter, which are sufficient to refer to but unnecessary to repeat in detail: [2025] FWC 1466.

• [3] One important aspect of the procedural history to the matter is that a small number of the respondent councils initially named in the ASU's application have been removed and fresh respondents joined. The authorisation, as will be made, pertains to the final set of eight respondents, which are: Darebin City Council, Greater Dandenong City Council, Hobsons Bay City Council, Hume City Council, Maribyrnong City Council, Melbourne City Council, Merri-bek City Council and Yarra City Council.

• [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 [3] above, and the employees of those employers. The specific employees who would be covered by the proposed enterprise agreement are listed in the SOAF and Authorisation.

• [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)).

Section 249(1)(b) - coverage requirements

• [8] I am satisfied that at least some of the employees who will be covered by the proposed agreement are represented by the ASU, which is entitled to do so under its rules. Further, The Association of Professional Engineers, Scientists and Managers, Australia (APESMA), Australian Nursing and Midwifery Federation (ANMF) and Australian Education Union (AEU)

are also entitled to represent certain employees who will be covered by the proposed SIEA. Each of the APESMA, ANMF and AEU has supported the ASU's application.

Section 249(1)(b)(ii)

• [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.

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

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

• [11] 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). Section 249(1B) sets out various matters that must be satisfied if an employer did not consent. The matters in section 249(1B) include the minimum threshold of employees for the employer, a majority of support by relevant employees, and the absence of an agreement in writing to bargain for a proposed single-enterprise agreement.

• [12] I am satisfied on the material in the SOAF that the employers have consented to the application. Accordingly, the requirements of s 249(1B)- which were previously in issue - are no longer applicable and, therefore the requirements of s 249(1C) - (1D) also do not apply. For completeness, however, I note that the SOAF provides support for a conclusion that the requirements of section 249(1B) would otherwise have been satisfied.

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

• [13] 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.

• [14] 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.

• [15] 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, the SOAF records that each of the respondent employers employed "50 employees or more" and I am satisfied that is the case.

• [16] 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).

• [17] 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.

• [18] 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

• [19] 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.

• [20] 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).

• [21] 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.

• [22] 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.

• [23] 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.

• [24] 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.

• [25] The SOAF requested that the operation of the authorisation commence on a date on or after 11 December 2025. 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.

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

[1] PR795283.

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