s.248 - Application for a single interest employer authorisation

Catholic Church Endowment Society Inc T/A Catholic Education (South Australia)

Application for a single interest employer authorisation - regarding proposed South Australian Catholic Schools Enterprise Agreement.

• [1] This matter concerns an application by Catholic Church Endowment Society Inc T/A Catholic Education (South Australia) on behalf of 16 employers, namely:

• Catholic Church Endowment Society Incorporated;
• The Catholic Diocese of Port Pirie Incorporated;
• Saint Ignatius' College (Adelaide) Limited;
• St Michael's College Adelaide;
• Loreto Marryatville Limited;
• Kildare Education Ministries Limited;
• Mercy Education Limited;
• St Columba College Munno Para Incorporated;
• Sisters of St Joseph Mary Mackillop College Kensington Limited;
• Trustees of the Marist Brothers;
• St Mary's College Limited;
• Cabra Dominican College Limited;
• Blackfriars Priory School;
• St Dominic's Priory College Limited;
• EREA Flexible Schools Limited; and
• EREA Colleges Limited.

• [2] I will refer to these employers collectively as the Applicant Employers. Each of the Applicant Employers operate Catholic Schools in South Australia.

• [3] The Applicant Employers seek a single interest employer authorisation under s.248 of the Fair Work Act 2009 (Cth) (FW Act). This provision is found in Division 10 of Part 2-4 of the FW Act. The Authorisation would permit the Applicant Employers to bargain together for a proposed multi-employer enterprise agreement to replace the South Australian Catholic Schools Enterprise Agreement 2020[1] (2020 Agreement), which nominally expired on 31 July 2024.

• [4] I observe that there have been some changes in the corporate arrangements amongst the employers since the making of the 2020 Agreement. These do not materially impact upon its coverage and are reflected in the identities of the Applicant Employers set out above.

• [5] The employees to be covered by the proposed Authorisation and enterprise agreement are the same as those specified in the 2020 Agreement and are, in effect:

• The teachers, education support officers and indigenous education officers employed in South Australian Catholic schools and indigenous education officers employed in the Catholic Education Office in South Australia.

• [6] The Independent Education Union of Australia (IEU) represents employees who would be covered by the proposed Authorisation and enterprise agreement and supports the application.

• [7] I have, with the concurrence of the parties, considered this application on the papers. Having done so, I have granted the application and now issue the Authorisation as sought. My reasons for so doing are outlined below.

• [8] The objects of Part 2-4 of the FW Act are set out in s.171 as follows:

(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and

(b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:

(ii) dealing with disputes where the bargaining representatives request assistance; and

(iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay."

• [9] The Act has previously provided for single interest authorisations;[2] however the basis and operation of the authorisations was significantly amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (SJBP Act).

• [10] Sections 248 to 250 of the FW Act now provides:

(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:

(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.

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

(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:

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

(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.

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.

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.

(3) 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."

• [11] The Explanatory Memorandum to the SJBP Act stated that the purpose of the amendments leading to these revised provisions in the following terms:

"1006. Part 21 of Schedule 1 to the Bill would amend Division 10 of Part 2-4 of the FW Act to remove unnecessary limits on access to single interest employer authorisations and simplify the process for obtaining them, and facilitating bargaining by:

• removing the requirement for two or more employers with common interests who are not franchisees to obtain a Ministerial declaration before applying a single interest employer authorisation;
• providing for employee bargaining representatives to apply for a single interest employer authorisation to cover two or more employers, subject to majority support of the relevant employees;
• permitting employers and employee bargaining representatives to apply to vary a single interest employer authorisation to add or remove the name of an employer from the authorisation, subject to meeting specified requirements; and

• • inserting new Subdivision AD - Variation of single interest employer agreement to add employer and employees, into Division 7 of Part 2-4 of the FW Act to permit employers and employee organisations to apply to the FWC for approval of a variation to extend coverage of an existing single interest employer agreement to a new employer and its employees, subject to meeting specified requirements."[3]

"1066. New subsection 249(1) would delineate the requirements of which the FWC must be satisfied before making a single interest employer authorisation depending on whether the application for the authorisation was made by the employer and its employees, or an employee organisation. It would also clarify the requirements of which the FWC must be satisfied depending on whether the single interest employer authorisation is to operate in respect of two or more common interest employers or franchisees. The term 'common interest employers' would be introduced by these amendments and used to identify those employers who may be included in a single interest employer authorisation but who are not franchisees."[4]

• [12] The requirements for making an authorisation under s.249 of the FW Act vary, depending upon the nature of the applicant and the circumstances of the employers involved. In this case, the applicants are the employers who seek to bargain together. This means that the "additional" requirements of s.249(1A) apply and the terms of s.249(1B) and consequential provisions do not.

• [13] The Applicant Employers are all likely to each employ more than 50 employees at the time that the application was made. This would mean that the 'rebuttable presumptions' concerning the common interest and public interest requirements of s.249(3), and the reasonable comparability of operations and business activities of the employers under s.249(1)(b)(vi), apply. I observe that I am in any event satisfied about those matters based upon the common materials before the Commission.

• [14] In deciding to make the authorisation, I am satisfied that all the relevant requirements under ss.249 and 249A of the FW Act have been met. I briefly deal with each in turn.

• [15] An application was made by the Applicant Employers and they would be covered by the (proposed) agreement. The application specifies the required matters, including the person nominated by the employers to make applications.[5] I am satisfied that the requirements under ss.248 and 249(b)(i) of the FW Act have been met.

Are at least some of the employees who will be covered by the Agreement represented by an employee organisation?

• [16] I am satisfied that at least some of the employees that will be covered by the agreement are represented by an employee organisation.[6] Each of the Applicant Employers employ one or more persons who are a member of, and are represented by, the IEU.[7]

Have the Parties had the opportunity to express their views?

• [17] I am satisfied that the Applicant Employers and the IEU as the bargaining representative of the employees have had the opportunity to express their views on the proposed authorisation.[8]

• [18] The relevant parties have provided submissions confirming their views, and all have supported the authorisation being made.

Have the Applicant Employers agreed to bargain together?

• [19] I am satisfied that the employers that will be covered by the agreement have agreed to bargain together, and that no person coerced, or threatened to coerce, any of the employers to so agree.[9]

• [20] In this regard, and more generally, I observe that all South Australian Catholic school employers have bargained together for all previous enterprise agreements. This has included under the former South Australian system from 1996, and since 2010, under the FW Act.

Have the requirements of either ss.249(2) or 249(3) been met?

• [21] It is s.249(3) of the FW Act that applies here. That is, the Applicant Employers must meet the common interest and the 'not contrary to the public interest' requirements.

• [22] In Application by UWU, AEU and IEU,[10] the Full Bench said the following in relation to the expression 'common interests' in s 243(1)(b)(ii) in connection with applications for supported bargaining authorisations:

"...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."

• [23] Noting the different role to be played by the "non-exhaustive lists" of 'common interests' that are expressed in the two sections involved,[11] the notion of what may be common interests in the above approach is of guidance.

• [24] I am satisfied that the Applicant Employers have clearly identifiable common interests.[12] Amongst other matters, the following factors identified in the application and which apply to each employer confirm that finding:

• The employers operate collaboratively rather than competitively. Examples of this are the policies and procedures which are centrally approved by the South Australian Commission for Catholic Schools and which apply to all schools. In addition, many aspects of all schools' operations and activities are centrally serviced by the Catholic Education Office which is the educational administrative arm of the Catholic Church Endowment Society Incorporated. The Catholic Education Office provides services to all Catholic schools, including industrial, administrative, financial, building, planning, marketing, human resources and educational consultancy services.

• With the exception of St Dominic's Priory College Limited, South Australian Catholic schools are treated as one system for the purposes of distributing Commonwealth and State Recurrent and Capital grants, educational accountability to the Commonwealth Government; and various other Commonwealth and State funding programs. St Dominic's Priory College Limited receives Recurrent and Capital Commonwealth funding directly from government but accesses services and supports from the Catholic Education Office on an agreed fee for service basis.

• Many aspects of all schools' operations and activities are centrally serviced by the Catholic Education Office which is the educational administrative arm of the Catholic Church Endowment Society Incorporated. The Catholic Education Office provides services to all Catholic schools, including industrial, administrative, financial, building, planning, marketing, human resources and educational consultancy services.

• The Applicant Employers operate under portability of employment entitlements such as personal/carer's leave and long service leave between all Catholic schools in South Australia. Any changes to entitlements which may be negotiated through enterprise bargaining are considered on the understanding that any bargaining in these areas affects all schools through the portability arrangements.

• Bargaining together allows benefits to be offered to staff which would not otherwise be possible. For instance, the negotiation of Paid Maternity/Adoption/Partner Leave through a central fund has ameliorated the difficulties which would otherwise have militated against agreement in enterprise bargaining or would have led to inequitable outcomes in schools regarding this very significant benefit to employees.

• The availability of scholarships to a large number of staff for further study (which has been a benefit to staff through enterprise bargaining since 1997) has been made possible because of the collaborative approach by Catholic school employers to establishing a Study Incentive Program fund. This fund is centrally managed and applicants for scholarships are assessed by a representative panel comprising employers and employees. Since its inception the Fund has provided scholarships to staff in Catholic schools to support them in furthering their skills and expertise.

• The core terms and conditions of employment for the relevant employees are the same at each Employer. This arises from the fact that the 2020 Agreement applies in each case.

• [25] I observe that the above are either the common interests, or provide the basis for the common interests, that satisfy the immediate test.

• [26] I am also satisfied that it is not contrary to the public interest to make the authorisation.[13]

• [27] Accordingly, I am satisfied that the requirements under s.249(3) of the FW Act have also been met.

Do the Applicant Employers have reasonably comparable operations and business activities?

• [28] As the requirements of s.249(3) have been met, s.249(1)(b)(vi) of the FW Act requires that the operations and business activities of each of the Applicant Employers are reasonably comparable with those of the other employers that will be covered by the Agreement. The material before the Commission strongly supports the proposition that this is so.

• [29] The Agreement will not cover employees in relation to general building and construction work. This meets the requirements of s.251A of the FW Act.

• [30] The proposed authorisation specifies each of the matters required by s.250(1) of the FW Act.

• [31] The findings made apply to all of the Applicant Employers and for the purposes of s.250(2) of the FW Act I am satisfied that each should be specified in the Authorisation.

• [32] The circumstances contemplated in ss.250(3) and (4) do not apply.

• [33] Given my satisfaction with all of the relevant requirements, I am obliged to issue the Authorisation under s.249(1) of the FW Act.

• [34] The Authorisation has been issued separately in PR777594.

• [35] Pursuant to s.249(4) of the FW Act, this Authorisation comes into operation on the day it is made (31 July 2024) and will cease to have effect on the earlier of the day on which the proposed enterprise agreement is made or 12 months after the date of this Authorisation, subject to any extension pursuant to s.252 of the FW Act.

• [36] The Commission stands ready to assist the parties with the bargaining for the proposed multi-employer agreement should that be sought, such as under a s.240 application or a joint request to conduct a collaborative approaches process to utilise interest-based bargaining.

[2] Sections 247 - 252 of the FW Act as it stood prior to the operation of the SJBP Act.

[3] Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, Revised Explanatory Memorandum at [1006].

[4] Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, Revised Explanatory Memorandum at [1066].

[5] Section 248(2)(c) of the FW Act - confirmed to be the Director - People, Leadership and Culture with the Catholic Education Office, South Australia.

[8] Section 249(1)(b)(ii) of the FW Act.

[10] [2023] FWCFB 176 at [34] as applied to a single interest employer authorisation application in Independent Education Union of Australia v Catholic Education Western Australia limited and others [2023] FWCFB 1177 at [31].

[11] Section.243(2) provides examples of common interests whereas in s.249(3A) the factors are matters that may be relevant to determining whether the employers have a common interest.

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