s.248 - Single interest employer authorisation

Application for a single interest employer authorisation - application granted

• [1] This is an application for a single interest employer authorisation made by 73 employers 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 (the Proposed Agreement) to cover the employers listed at Schedule A of this decision (the Employers) and their employees who fall within the classifications of the Medical Scientists, Pharmacists and Psychologists Victorian Public Sector (Single Interest Employers) Enterprise Agreement 2021-2025 (the Current Agreement).

• [2] The Employers are national system employers for the purposes of the FW Act who are all principally engaged in the provision of public health services in Victoria. Most of the Employers are already covered by the Current Agreement.

• [3] The Health Services Union (specifically the Health Services Union Victoria No.4 Branch) (HSU) is the sole employee organisation that is a bargaining representative of employees who will be covered by the proposed multi-enterprise agreement.[1] The HSU supports the granting of the authorisation.[2]

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

• [5] The matter was listed for a case management conference on 26 November 2025.

• [6] In response to directions made on 26 November 2025, the HSU and the Employers filed a Statement of Agreed Facts (SOAF) on 28 November 2025. The facts stated in the SOAF and the application are about matters known to the HSU and the Employers. I accept that the matters in the SOAF and the application are a reliable evidentiary basis to determine the matter.

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

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

• [9] 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.

• [10] 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.

• [11] 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.

• [12] 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.

(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.

• [13] 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) have been considered by the Full Benches of the Fair Work Commission (Commission) in Independent Education Union of Australia v Catholic Education Western Australia Limited and others (IEU v CEWA)[3] and Association of Professional Engineers, Scientists and Managers, Australia v Great Southern Energy Pty Ltd T/A Delta Coal, Whitehaven Coal Mining Ltd, Peabody Energy Australia Coal Pty Ltd, Ulan Coal Mines Ltd (APESMA).[4] I rely upon what is said in those decisions.

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

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

• [15] The requirement for an application to have been made suggests that the application must be validly made in accordance with the applicable statutory requirements.[5] The application has been made by 73 employers pursuant to s.248(1)(a). The application meets the requirements of s.248(2) as it specifies the employers and employees covered by the Agreement and that the Victorian Hospitals' Industrial Association (VHIA) is nominated by the Employers to make applications under the FW Act if the authorisation is made. 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).

• [16] The requirements of s.249(1)(b) which I must be satisfied of in this case are those provided in subparagraphs (i), (ii), (iii), (v) and (vi). The requirement in subparagraph (iv) is not relevant to my consideration because the application was not made by a bargaining representative of an employee who will be covered by the agreement.

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

• [17] The HSU has members working across a range of professions, and across a range of the

Employers, that would be covered by the Proposed Agreement and is the bargaining representative for these members.[6] The VHIA has been engaged in bargaining from 29 April 2025 and has had 22 meetings with the HSU.[7]

• [18] I am satisfied that at least some of the employees who will be covered by the proposed agreement are represented by the HSU 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?

• [19] Each of the Employers provided an instrument of appointment to the Commission:

• authorising VHIA to apply to the Commission in the employer's name for a single interest employer authorisation in relation to the proposed agreement,
• appointing VHIA as their bargaining representative in respect of the proposed agreement and

• • authorising VHIA to reach agreement in principle on the employer's behalf (subject to the employer's approval) on terms and conditions to be included in the proposed agreement.[8]

• [20] The HSU advised the Commission at the case management conference on 26 November 2025 that supports the making of the authorisation sought by the Employers.

• [21] There is no indication that there are any employee bargaining representatives other than the HSU. Based on the instruments of appointment provided by the Employers and the correspondence from the HSU, I am 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)(iii) - Are the requirements of subsection (1A) met?

• [22] The requirements of s. 249(1A) 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.

• [23] The SOAF[9] and the instruments of appointment provided by the Employers[10] confirm that:

a. the Employers have agreed to bargain together; and

b. no person coerced, or threatened to coerce, the Employers to agree to bargain together.

• [24] The Employers have a longstanding history of bargaining together, with single interest employer authorisations being granted in the previous two enterprise agreements.[11] The Employers are provided with a regular opportunity to meet as a group to discuss or contribute to the progress of bargaining.[12]

• [25] The Employers have also issued employees with a notice of initiation of bargaining and rights to be represented that indicated the Proposed Agreement would be a single-interest employer enterprise agreement.[13]

• [26] I am therefore satisfied that the requirements of s. 249(1A) are met.

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

• [27] Section 249(2) deals with employers who carry on business activities under the same franchises which is not applicable to the current application. 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?

• [28] 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.

• [29] In IEU v CEWA[14] the Full Bench adopted the following approach of the Full Bench in Application by UWU, AEU and IEU[15] 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.[16]

• [30] The Full Bench in APESMA[17] also followed Application by UWU, AEU and IEU and concluded that s.249(3)(a) required consideration of whether the relevant employers have joint, shared, related or like characteristics, qualities, undertakings or concerns that will impact or influence them in relation to bargaining for an enterprise agreement that will cover the relevant employees.[18]

• [31] I am satisfied that the requirements of s.249(3)(a) are met as the application and the SOAF establish 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.

• [32] The Employers all have sites located in Victoria.[19]

• [33] The majority of the Employers are all regulated by the Health Service Act 1988 (Vic).[20]

Nature of the Enterprises and Employment Terms and Conditions

• [34] Each of the Employers are engaged in the provision of health and welfare services.[21] The Employers and their employees are all covered by the Health Professionals and Support Services Award 2020 (the Award).[22]

• [35] The Employers (or their predecessors) have a history of bargaining together in respect of industrial instruments covering the employees the subject of this application. The Employers and their Employees have been covered by the same federal industrial instruments in the same or substantially the same terms since at least 1992.[23]

• [36] The core terms and conditions of employment for the employees are substantially the same at each Employer, as shown by the Current Agreement and predecessor enterprise agreements. A single enterprise agreement across the State facilitates the efficient operation of the bargaining process and the movement of workers within the sector along with the transfer of their personal leave and long service leave entitlements.[24]

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

• [37] The Employers and the HSU submit that it is not contrary to the public interest to make the authorisation as approving the application would:

1. Preserve the status quo in relation to how the bargaining has occurred and common terms across the Employers for the Employees.
2. Meet the objects of the FW Act as the Authorisation will ensure that the relevant workers all receive the same additional benefits to those contained within the Award. In addition, these benefits are provided regardless of whether the worker is employed with a small Health Service or a large Health Service which promoted equity and fairness across the Health Services.
3. Ensure that the bargaining process is as efficient as possible which will ensure that public funds designed to improve the health outcomes of individuals within Victoria are utilised for that purpose.

• d. Ensure that certain entitlements are portable across employers which will assist in the retention of workers in the public health system.[25]

• [38] Based on these submissions, I am satisfied that it is not contrary to the public interest to make the authorisation. As such, the requirements of s.249(3)(b) are met.

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?

• [39] The requirements of s.249(1)(vi) are met as 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 application establishes that the Employers:

1. The Employers deliver health services to the Victorian Community;
2. The Employers have the common goal of attracting and retaining employees;
3. The Employers have the same objective to provide health services to the State of Victoria and operate collaboratively to meet that objective;

• d. The Employers are substantially funded by the State of Victoria and are therefore subject to the same funding arrangements which impact directly on their bargaining position.[26]

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

• [40] 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.

• [41] I am satisfied that the proposed agreement will not cover employees in relation to general building and construction work.