Fair Work Act 2009

s.248 - Application for a single interest employer authorisation

Application for a proposed single interest employer authorisation regarding a proposed multi-enterprise agreement for employers in the aged care industry

• [1] This is an application for a single interest employer authorisation made by the Australian Nursing and Midwifery Federation (ANMF) under s.248 of the Fair Work Act 2009 (Cth) (the FW Act). The authorisation is sought in respect of bargaining for a proposed multi-enterprise agreement to cover employees who work in the provision of Aged Care Services in the following roles:

1. Registered Nurses
2. Enrolled Nurses
3. Personal care workers
4. Leisure and lifestyle employees
5. Indirect care staff, including cleaners, laundry hands, drivers, food service employees (including cooks), receptionists and administrative staff, grounds maintenance employees, interpreters and activity coordinators.

• [2] The authorisation sought is in relation to each of the following employers (the Employers) and their employees:

1. Wonthaggi & District Elderly Citizens Home
2. Carinya Lodge Homes Inc
3. Woorayl Lodge Inc
4. Hillview Bunyip Aged Care Inc

• [3] Each of the Employers supports the making of the authorisation in the terms sought.

• [4] The Employers are national system employers for the purposes of the FW Act who are all principally engaged in the provision of Aged Care Services and are located and operate in the Gippsland region of Victoria.

• [5] The Health Services Union (HSU Victoria Number 1 Branch) trading as the Heath Workers Union (HWU) is an employee organisation that is a bargaining representative of employees who will be covered by the proposed multi-enterprise agreement. The HWU also supports the granting of the authorisation.

• [6] For the reasons set out below, I have decided to grant the application and make the authorisation in the terms sought.

• [7] The matter was listed for directions on 15 April 2025.

• [8] In response to directions made on 15 April 2025:

1. The ANMF and the Employers filed a Statement of Agreed Facts on 24 April 2024.
2. The ANMF and the Employers filed submissions on 24 April 2024.
3. The HWU filed submissions on 8 May 2024.

• [9] The parties consented to the application being determined on the papers.

• [10] The relevant legislative provisions in relation to single interest employer authorisations are ss.248-250 of the FW Act.

• [11] Section 248 sets out the requirements in relation to who may make an application and what the application must specify as follows:

(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:

(a) those 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.

• [12] Section 249 sets out the circumstances in which the Commission is required to make a single interest employer authorisation and provides:

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

(b) the FWC is satisfied that:

(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:

(a) franchisees of the same franchisor; or

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

(c) any combination of the above.

(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:

(a) geographical location;

(b) regulatory regime;

(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):

(a) employee has its ordinary meaning; and

(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.

• [13] Section 249A prohibits the Commission from making a single interest employer authorisation in relation to a proposed enterprise agreement which would cover employees in relation to general building and construction work. It provides:

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.

• [14] Section 250 sets out the requirements in relation to the information which must be specified in a single interest employer authorisation as follows:

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.

(4) 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.

• [15] The parties relied upon a Statement of Agreed Facts (SOAF) filed by the ANMF on behalf of itself and the Employers. The facts stated in the SOAF are about matters known to the ANMF and the Employers. I accept that the SOAF is a reliable evidentiary basis to determine the matter.

• [16] Amendments to the provisions of the FW Act dealing with single interest employer authorisations by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) were first considered by the Full Bench in Independent Education Union of Australia v Catholic Education Western Australia Limited and others (IEU v CEWA).[1] I rely upon what is said in that decision. Like the current application, the application in IEU v CEWA proceeded with the support of each of the respondent employers.

• [17] I have addressed each of the applicable requirements below.

Section 249(1)(a) - Whether an application has been made

• [18] The requirement for an application to have been made suggests that the application must be validly made in accordance with the applicable statutory requirements.[2] The application has been made by ANMF, an employee organisation for the purposes of the FW Act which is entitled to represent the industrial interests of the employees of the Employers.[3] The ANMF is a bargaining representative of at least one employee covered by the Agreement pursuant to s.248(1)(b) and therefore has standing to make the application. The application meets the requirements of s.248(2) as it specifies the employers and employees covered by the Agreement. The Employers are all corporations and therefore national system employers within the meaning of s 14 of the FW Act. I am therefore satisfied that a valid application for the authorisation has been made as required by s.249(1)(a).

• [19] The requirements of s 249(1)(b) which I must be satisfied of in this case are those provided in subparagraphs (i), (ii), (iv), (v) and (vi). The requirement in subparagraph (iii) is not relevant to my consideration because the application was not made by two or more employers.

Section 249(1)(b)(i) - Are at least some of the employees who will be covered by the Agreement represented by an employee organisation?

• [20] I am satisfied that at least some of the employees who will be covered by the proposed agreement are represented by the ANMF[4] and the HWU[5] as required by s.249(1)(b)(i).

Section 249(1)(b)(ii) - Have the employers and bargaining representatives of the employees had the opportunity to express their views?

• [21] The ANMF and the Employers filed submissions supporting the making of the declaration and the SOAF indicating that the Employers consent to the declaration being made. The HWU has also filed submissions confirming it supports the granting of the authorisation.

• [22] There is no indication that there are any bargaining representatives other than the ANMF and the HWU for the Agreement. In addition, each of the Employers have sent correspondence directly to the Commission advising that they agree with the matters in the application and that they support the making of the authorisation sought. I am therefore satisfied that the Employers and the bargaining representatives of the employees of those Employers have had the opportunity to express to the Commission their views on the authorisation as required by s.249(1)(b)(ii).

Section 249(1)(b)(iv) - Has each employer consented to the application or is covered by subsection (1B)?

• [23] The requirements of s. 249(1)(b)(iv) are met as each employer has consented to the application so it is not necessary for me to consider subsection (1B).

Section 249(1)(b)(v) - Have the requirements of either ss 249(2) or 249(3) been met?

• [24] Section 249(2) deals with employers who carry on business activities under the same franchises which is not applicable to the current application.[6] Section 249(3) requires satisfaction of two requirements, that the employers have readily identifiable common interests and that it is not contrary to the public interest to make the authorisation.

Section 249(3)(a) - Do the employers have readily identifiable common interests?

• [25] The matters which may be relevant to determining whether the Employers have common interests under s. 249(3A) include geographical location, regulatory regime and the nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises.

• [26] Section 249(3AB) provides that if 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. As each of the Employers employed 50 employees or more at the time that the application was made,[7] s.249(3AB) applies to the current application.

• [27] Each of the respondent employers in IEU v CEWA[8] employed 50 employees or more at the time that the application was made with the result that s.249(3AB) applied to the Full Bench's consideration of s.249(3). Even without reliance on s.249(3AB), the Full Bench indicated that they would have been positively satisfied that the requirements in s 249(3) were met on the basis of the material before them.[9] In doing so, the Full Bench adopted the following approach of the Full Bench in Application by UWU, AEU and IEU[10]in relation to the meaning of the expression 'common interests' in s.243(1)(b)(ii) and (2) given the commonality of language used in those provisions and in s.249(3)(a) and (3A):

...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.[11]

• [28] Given that no Employer that will be covered by the proposed agreement has sought to prove to the contrary, I am satisfied that the requirements of s.249(3)(a) are met. Even without reliance on without reliance on s.249(3AB), I am satisfied that the requirements of s.249(3) are met as the SOAF establishes that the Employers have recognisable related or like characteristics in relation to the matters referred to in s.249(3A). I deal with each of these matters below.

• [29] All four of the Employers are located in the Gippsland region of Victoria, operating within close proximity to each other. The shared geographical location means each of the employers face similar workforce challenges, including recruitment and retention of nurses and direct and indirect aged care workers.[12]

• [30] The Employers operate within the same regulatory framework governing the provision of aged care services in Australia. Specifically, each of the employers are regulated by the Aged Care Act 1997 (Cth) and associated principles.[13] The Employers are required to demonstrate compliance with the Aged Care Quality Standards[14] and are subject to oversight by the Aged Care Quality and Safety Commission.[15]

• [31] Each of the employers receive funding from the Commonwealth via the Australian National Aged Care Classification model.[16]

Nature of the Enterprises and Employment Terms and Conditions

• [32] Each of the Employers provide residential aged care services and are 'stand alone' providers.[17] They each employ persons performing roles such as Registered and Enrolled Nurses, Personal Care Workers and other indirect aged care staff.[18] The employees performing these roles perform extremely similar duties across each of the Employers. The terms and conditions of employment across the Employers are broadly similar. Each of the Employers is covered by a single enterprise agreement that has passed its nominal expiry date. The enterprise agreements covering each of the Employers are:

• Wonthaggi & District Elderly Citizens Homes Inc (TA Rose Lodge), ANMF & HSU Enterprise Agreement 2017 (AE501274) which has a nominal expiry date of 31 May 2021

• Carinya Lodge Homes Inc ANMF & HSU Enterprise Agreement 2021 (AE519572) which has a nominal expiry date of 31 May 2024

• Woorayl Lodge Inc, ANMF & HSU Enterprise Agreement 2017 (AE502753) which has a nominal expiry date of 31 May 2021

• Hillview Bunyip Aged Care, Health & Allied Services Enterprise Agreement 2018 (AE501507) which has a nominal expiry date of 1 March 2022

• Hillview Bunyip Aged Care Nurses Enterprise Agreement 2018 (AE500784) which has a nominal expiry date of 1 March 2022[19]

• [33] The enterprise agreements covering the Employers provide for similar terms and conditions in areas such as personal leave, long service leave, annual leave, allowances, penalty rates, shift allowances, hours of work and education/professional development leave.[20] The classification structures contained in each of the agreements are also very similar.[21]

• [34] The current rates of pay are broadly consistent. The Employers have also taken a consistent approach in increasing wages of employees in response to the Aged Care Work Value case and associated funding increases.[22]

Section 249(3)(b) - Is it contrary to the public interest to make the authorisation?

• [35] Given that no Employer that will be covered by the proposed agreement has sought to prove to the contrary, I am satisfied that the requirements of s.249(3)(b) are met. Even without without reliance on s.249(3AB), I find that it is not contrary to the public interest to make the authorisation, based on the matters in the SOAF.

Section 249(1)(vi) - if the requirements of subsection (3) are met - are the operations and business activities of each of those employers reasonably comparable with those of the other employers that will be covered by the agreement?

• [36] Section 249(1AA) provides that if 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. As each of the Employers employed 50 employees or more at the time that the application was made, s.249(1AA) applies to the current application.

• [37] Given that no Employer that will be covered by the proposed agreement has sought to prove to the contrary, I am satisfied that the requirements of s.249(1)(vi) are met. Even without reliance on s.249(1AA), I am satisfied that the operations and business activities of the Employers are reasonably comparable with the other Employers that will be covered by the agreement as the SOAF establishes the following:

1. The primary function of each of the Employers is the delivery of residential aged care services;
2. The Employers are 'stand alone' aged care providers, in that they operate independently and are not part of a larger aged care network or organisation;
3. The workforce composition of each of the Employers is substantially the same, with the Employers all engaging a mix of Registered and Enrolled Nurses, Personal Care Workers and indirect care staff;
4. The Employers each have similar funding arrangements, primarily via Commonwealth funding and resident contributions;
5. The Employers are all charities registered with the Australian Charities and Not

• f. The Employers operate under the same regulatory framework.[23]

249A - the agreement would not cover employees in relation to general building and construction work

• [38] Section 249A prevents the Commission from making a single interest authorisation if the proposed agreement would cover employees in relation to general building and construction work.

• [39] I am satisfied based on the SOAF, that the proposed agreement will not cover employees in relation to general building and construction work.[24]

• [40] I am satisfied in relation to each of the applicable requirements in s.249(1), and that the restriction in s.249A does not apply. I am therefore required to make the single interest employer authorisation sought. The authorisation is made by a separate order that is published in conjunction with this decision, and which specifies the matters required by s.250, as applicable. In accordance with s.249(4), the authorisation will operate from the date of this decision.

[1] [2023] FWCFB 177.

[2] Ibid, [24]; Application by UWU, AEU and IEU [2023] FWCFB 176, [29].

[5] HWU submissions dated 8 May 2024 [2]

[8] [2023] FWCFB 177.

[10] [2023] FWCFB 176

[21] Form F83 - Application for a single interest employment authorisation, 15

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