1
Fair Work Act 2009
s.248—Single interest employer authorisation
Independent Education Union of Australia
v
Catholic Education Western Australia Limited and others
(B2023/703)
JUSTICE HATCHER, PRESIDENT
VICE PRESIDENT ASBURY
DEPUTY PRESIDENT HAMPTON
SYDNEY, 28 SEPTEMBER 2023
Application for a proposed single interest employer authorisation regarding a proposed
enterprise agreement for Western Australian Catholic education employers.
Introduction
[1] This matter concerns an application by the Independent Education Union of Australia
(IEU) under s 248 of the Fair Work Act 2009 (Cth) (FW Act) for a single interest employer
authorisation. The authorisation is sought in respect of bargaining for a proposed multi-
enterprise agreement to cover general and support staff employed in the Catholic education
sector in the State of Western Australia. In particular, it seeks authorisation for the
commencement of bargaining with the following Catholic education employers who operate
primary and/or secondary schools and related services in that sector (respondent employers):
(1) Catholic Education Western Australia Limited (CEWA);
(2) John XXIII College Inc;
(3) Loreto Nedlands Limited.
(4) Mazenod College Limited;
(5) Mercy Education Limited;
(6) Norbertine Canons Inc;
(7) Servite College Council Inc;
(8) Edmund Rice Education Australia Colleges Ltd (EREA Colleges Ltd);
(9) Edmund Rice Education Australia Flexible Schools Ltd (EREA Flexible Schools
Ltd); and
(10) Marist Schools Australia Limited.
[2] The class of employees to be covered by the authorisation, and who are intended to be
covered by the proposed enterprise agreement, is:
(a) all support/operations/general staff employed by the employers listed above,
being Catholic schools in Western Australia; and
[2023] FWCFB 177
DECISION
AUSTRALIA FairWork Commission
[2023] FWCFB 177
2
(b) working in:
(i) schools registered pursuant to the School Education Act 1999 (WA) and/or
(ii) long day care, occasional care (including those occasional care services not
licensed), childcare centres, day-care facilities, out-of-school hours care,
kindergartens and preschools, and early childhood intervention programs.
[3] This application excludes employees employed as teachers registered with the Teacher
Registration Board of Western Australia.
[4] Each of the respondent employers supports the making of the authorisation in the terms
sought.
[5] This application represents the first consideration of relatively recent legislative
amendments to the FW Act made by the Fair Work Legislation Amendment (Secure Jobs, Better
Pay) Act 2022 (Cth) (SJBP Act), which relevantly commenced on 6 June 2023. Given the
significance of the matter, the application has been dealt with by a Full Bench of the
Commission and other interested organisations were invited to make submissions on the matter.
Ultimately, five organisations, being the Australian Council of Trade Unions (ACTU), the
Australian Chamber of Commerce and Industry, the Australian Industry Group, and Australian
Business Industrial and Business NSW made submissions pursuant to this invitation, primarily
about the approach that the Commission should adopt regarding the construction and
application of the relevant provisions.
[6] The ACTU supports the application, whereas the other intervenors did not advance any
view as to whether the Commission should grant the application.
[7] Given the absence of any factual disputes and any request for a hearing to be conducted,
the Full Bench has determined this matter based upon the written submissions and other
materials provided by the parties.
[8] For the reasons set out below, we have decided to grant the application and make the
authorisation in the terms sought.
The statutory framework
[9] The objects of Part 2-4 — Enterprise agreements of the FW Act are set out in s 171 as
follows:
171 Objects of this Part
The objects of this Part are:
(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
[2023] FWCFB 177
3
(b) to enable the FWC to facilitate good faith bargaining and the making of enterprise
agreements, including through:
(i) making bargaining orders; and
(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.
[10] Since its enactment, Part 2-4 has included, in Division 10, a scheme for single interest
employer authorisations in connection with bargaining. That scheme has been the subject of
significant amendment by the SJBP Act.
[11] Section 248 concerns the making of applications for single interest employer
authorisations, and now provides:
248 Single interest employer authorisations
(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.
(2) The application 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.
[12] The main amendment to s 248 made by the SJBP Act is the addition of subsection (1)(b),
which now enables a bargaining representative of an employee who will be covered by the
proposed agreement to make an application. Under s 176, a registered employee organisation
may be a bargaining representative of its members.
[13] Section 249 sets out the circumstances in which the Commission is required to make a
single interest employer authorisation:
249 When the FWC must make a single interest employer authorisation
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
[2023] FWCFB 177
4
(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.
(1AA) If:
(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
(1B) An employer is covered by this subsection if:
(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.
[2023] FWCFB 177
5
(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.
(1D) This subsection applies to an employer if:
(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.
Franchisees
(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.
Common interest employers
(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.
(3AB) If:
(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.
Calculating number of employees
(3AC) For the purposes of calculating the number of employees referred to in paragraph
(1AA)(b), (1B)(a) or (3AB)(b):
[2023] FWCFB 177
6
(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.
Operation of authorisation
(4) The authorisation:
(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.
[14] The main amendments to s 249 effected by the SJBP Act are:
(1) Subparagraphs (i) and (ii) of s 249(1)(b) constitute new requirements that must
be satisfied for a single interest employer authorisation to be made.
(2) The ‘common interest employers’ requirements in s 249(3), which operate as an
alternative to the franchisee requirements in s 249(2), have replaced the
requirement for a Ministerial declaration made under s 247 (now repealed).
Section 249(3A) sets out examples of what constitutes ‘common interests’ for
the purpose of s 249(3)(a). As we discuss further below, the text of s 249(3)(a)
and (3A) is very similar to that in s 243(1)(b)(ii) and (2) respectively, which
concern the Commission’s power to make supported bargaining authorisations.
Section 249(3AB) and (3AC) establish a rebuttable presumption as to
satisfaction of the requirements in s 249(3).
(3) Where the new ‘common interest employers’ requirements in s 249(3), rather
than the franchisee requirements in s 249(2), are applicable, thea new
‘reasonably comparable’ requirement in s 249(1)(b)(vi) that must be satisfied.
New s 249(1AA) establishes a rebuttable presumption as to the satisfaction of
the new requirement in s 249(1)(b)(vi).
(3) There is now an added requirement in s 249(1)(b)(iv) in respect of any
application made by an employee bargaining representative. There are two
alternatives: each employer must either have consented to the application or be
covered by new s 249(1B). Section 249(1B) sets out five cumulative
requirements for the subsection to apply (in paragraphs (a)-(e)). The
requirements in paragraphs (d) and (e) operate in conjunction with new
subsections (1C) and (1D) respectively.
[15] Section 249A is a provision added by the SJBP Act which establishes a new restriction
on making single employer authorisations as follows:
[2023] FWCFB 177
7
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.
[16] Section 250 prescribes the content of a single interest employer authorisation as follows:
250 What a single interest employer authorisation must specify
What 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.
[17] Subsections (3) and (4) of s 250 were added by the SJBP Act.
[2023] FWCFB 177
8
[18] Finally, the SJBP Act added the following new subsection to s 172, which establishes a
significant consequence of the making of a single interest employer authorisation:
Requirement for employer specified in single interest employer authorisation
(5) Despite any other provision of this Part, if an employer is specified in a single interest
employer authorisation that is in operation:
(a) the only kind of enterprise agreement the employer may make with their employees
who are specified in the authorisation is a single interest employer agreement; and
(b) the employer must not initiate bargaining, agree to bargain, or be required to
bargain with those employees for any other kind of enterprise agreement.
[19] The Revised Explanatory Memorandum (REM) for the Fair Work Legislation
Amendment (Secure Jobs, Better Pay) Bill 2022 makes it apparent that the overall purpose of
the amendments to Division 10 of Part 2-4 is to liberalise access to single interest employer
authorisations. The REM relevantly states:
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.
…
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.
[2023] FWCFB 177
9
Evidentiary material
[20] The evidentiary material relied upon by the IEU is comprised of a Statement of Agreed
Facts (SAF) signed by the IEU and CEWA on behalf of all 10 respondent employers. The text
of the SAF is reproduced in full in Attachment A to this decision. No party submitted that we
should not rely upon the SAF or contested any parts of its content. The facts stated in the SAF
concern matters known to the IEU and the respondent employers and nothing stated is
improbable or of a contentious nature. We accept the SAF as constituting a reliable evidentiary
basis upon which to found our consideration of the application.
[21] Although not part of the SAF, it is common ground that all but two of the respondent
employers concerned have previously satisfied the then-relevant requirements of the FW Act
for a single employer authorisation to cover teaching staff employed by them.1 In making that
authorisation, the Commission was, amongst other matters, satisfied that the respondent
employers had agreed to bargain together pursuant to s 249(1)(b)(i) of the FW Act (as it then
was). The Commission further extended that authorisation on 28 February 2023.2
[22] The only difference between the list of employer respondents here and the employers
specified in this previous teaching staff single interest employer authorisation is reflective of a
governance restructure by one employer. Effective January 2023, the Trustees of Edmund Rice
Education Australia Ltd restructured to become Edmund Rice Education Australia Ltd (EREA
Ltd). EREA Ltd utilises a series of subsidiary companies, two of which operate schools in
Western Australia: EREA Colleges Ltd and EREA Flexible Schools Ltd. This restructure was
reflected in an amended authorisation3 issued by the Commission.
Consideration
[23] Section 249 in its current form establishes a number of alternative pathways to the
making of a single interest employer authorisation. The pathway is relatively straightforward
where, as stated in the SAF here, the respondent employers consent to the application and each
of them has 50 employees or more. That means that it is unnecessary for us to engage in
consideration of the proper construction and application of many of the new provisions of s 249.
We address each of the applicable requirements in turn below.
Section 249(1)(a) — Whether an application has been made
[24] The first requirement is that of s 249(1)(a), namely whether an application for the
authorisation has been made. As recently stated in Application by UWU, AEU and IEU4 in
respect of the identically-worded provision in s 243(1)(a), the requirement for an application to
have been made connotes an application that has been validly made in accordance with the
applicable statutory requirements — in this case, the requirements of s 248. Here, the
application has been made by the IEU, a registered organisation of employees. Each of the
respondent employers employs persons who are members of the IEU and are represented by
the IEU in respect of the proposed multi-enterprise agreement. This satisfies the requirement
for standing to apply in s 248(1)(b). In accordance with s 248(2), the application specifies the
employers that will be covered by the agreement (which are all corporations and are thus
national system employers within the meaning of s 14 of the FW Act), and also the employees
who will be covered by it (see [2] above).
[2023] FWCFB 177
10
Applicable requirements of s 249(1)(b)
[25] The requirements of s 249(1)(b) about which we must be satisfied in this case are those
contained in subparagraphs (i), (ii), (iv), (v) and (vi). The requirement in subparagraph (iii) does
not apply 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?
[26] Consistent with our finding concerning the IEU’s standing to make this application, at
least some of the employees that will be covered by the proposed agreement are represented by
the IEU, an employee organisation.
Section 249(1)(b)(ii) — Have the employers and bargaining representatives of the employees
had the opportunity to express their views?
[27] We are satisfied that the respondent employers and the bargaining representatives have
had the opportunity to express their views on the proposed authorisation. A preliminary
conference was held before Deputy President Hampton on 20 July 2023. The Commission
subsequently issued directions to the parties requiring them to provide a statement of agreed
facts and written submissions. Other parties, or intervenors, seeking to be heard were also
afforded an opportunity to provide written submissions. The application and material filed in
the proceedings were published on the Commission’s public website. The IEU has provided
submissions confirming their views, and the respondent employers have confirmed that they
did not intend to make submissions but were in support of the authorisation being made. There
is no basis to consider that there is currently any bargaining representative other than the IEU
for employees to be covered by the proposed agreement.
Section 249(1)(b)(iv) — Has each employer consented to the application or is covered by
subsection (1B)?
[28] As earlier stated, each employer consents to the IEU’s application. Consideration of
s 249(1B) is therefore not necessary.
Section 249(1)(b)(v) — Have the requirements of either ss 249(2) or 249(3) been met?
[29] This application is advanced on the basis that the requirement in s 249(3) is met
(s 249(2) being inapplicable because the respondent employers do not carry on business
activities under a franchise). Our consideration under s 249(3) is simplified because the
application here is made by a bargaining representative and the SAF demonstrates that each of
the respondent employers has 50 employees or more (applying the counting methodology in
s 249(3AC)), meaning that s 249(3AB) applies to our consideration under s 249(3). Section
249(3AB) establishes a rebuttable presumption that the requirements of s 249(3) are met with
respect to each employer that has 50 employees or more, counted in accordance with
s 249(3AC), ‘unless the contrary is proved’. No party appearing in the matter has attempted to
prove the contrary and, in any event, there is no evidence before us which would permit the
[2023] FWCFB 177
11
contrary to be established. Therefore, in accordance with s 249(3AB), we are satisfied that the
requirements of s 249(3) are met with respect to all the respondent employers.
[30] We would, in any event, have been positively satisfied that the requirements in s 249(3)
were met on the basis of the material before us even without reliance on s 249(3AB). The SAF
discloses that each of the respondent employers:
• is principally engaged in the provision of primary and/or secondary education in
a school setting;
• operates in the state of Western Australia;
• operates schools that are registered under the School Education Act 1999 (WA);
• is the employer of one or more employees to whom the Educational Services
(Schools) General Staff Award 2020 applies;
• engages in Roman Catholic religious instruction;
• receives funding from the Government of the Commonwealth of Australia for the
purpose of delivering education;
• receives funding from the Government of the State of Western Australia for the
purpose of delivering education; and
• employs one or more persons who are principally employed to provide, or to assist
in providing, educational instruction or who are employed in any other capacity,
and who are not employed as teachers.
[31] In Application by UWU, AEU and IEU,5 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.
[32] Given, as earlier stated, the commonality of language used in s 243(1)(b)(ii) and (2) and
s 249(3)(a) and (3A), we consider this approach may equally be applied here. On this basis, the
matters in the SAF set out above would readily satisfy the requirement for clearly identifiable
common interests between the relevant employers in s 249(3)(a). As for s 249(3)(b), it is
sufficient to say that there is nothing before us to indicate that it would be contrary to the public
interest to make the authorisation sought. A fuller exploration of the proper construction and
application of the expression ‘not contrary to the public interest’ in s 249(3)(b) may await a
case in which this consideration is in contest.
[2023] FWCFB 177
12
Section 249(1)(b)(vi) — Are the operations and business activities of each of the employers
reasonably comparable with those of the other employers that will be covered by the
agreement?
[33] Section 249(1)(b)(vi) imposes an additional requirement in cases where subsection (3)
rather than subsection (2) applies. Section 249(1AA) applies a rebuttable assumption to
s 249(1)(b)(vi) that is in similar terms to s 249(3AB) and likewise uses the methodology for
counting the requisite number of employees in s 249(3AC). One aspect of s 249(1AA) that may
give rise to difficulty is how the presumption works where some but not all of the relevant
employers meet the 50-employee threshold. However, we need not consider that difficulty
further here because, as earlier found, all of the respondent employers meet the numerical
threshold for the operation of the presumption. Because no party in the matter has attempted to
prove that the requirement in s 249(1)(b)(vi) is not met, and there is no evidence before us that
this is the case, we consider that the requirement in s 249(1)(b)(vi) is met.
[34] We observe, without engaging in full in a consideration of the proper construction and
application of s 249(1)(b)(vi), that we would be satisfied that the requirement in the provision
has been met in this case even if s 249(1AA) did not apply. Although it is apparent that the
requirement for comparability of operations and business activities is likely more stringent than
the requirement for common interests in s 249(3), we consider that the matters set out in
paragraph [30] above would be sufficient to demonstrate the necessary comparability.
Section 249A — General building and construction work
[35] The proposed agreement will not cover employees in relation to general building and
construction work, and therefore the restriction on the making of single interest employer
authorisations in s 249A does not apply.
Conclusion
[36] Because we are satisfied as to each of the applicable requirements in s 249(1), and the
restriction in s 249A does not apply, we are 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.
PRESIDENT
Appearances:
THE FAIR WORK FAI COMMISSION THE
[2023] FWCFB 177
13
P Dean, of counsel, with permission, with M Elliot and A Odgers for the IEU.
M Jensen, solicitor (of Lavan), with permission, with T Littlejohn and C Jones on behalf of the
respondent employers.
Hearing details:
2023.
Video using Microsoft Teams:
20 July (initial conference before Hampton DP).
Otherwise determined on the papers.
Written submissions:
Respondent employers: 3 August 2023
Independent Education Union of Australia: 4 August 2023.
Australian Council of Trade Unions: 10 August 2023.
Australian Chamber of Commerce and Industry: 16 August 2023.
The Australian Industry Group: 17 August 2023.
Australian Business Industrial and Business NSW: 17 August 2023.
Reply submissions:
Independent Education Union of Australia: 21 August 2023.
[2023] FWCFB 177
14
Attachment A: Statement of Agreed Facts
1. Each of the entities named in Annexure A:
1.1. is a corporation, registered under the Corporations Act 2001 (Cth);
1.2. is principally engaged in the provision of primary and /or secondary education in
a school setting;
1.3. operates in the state of Western Australia;
1.4. operates schools that are registered under the School Education Act 1999 (WA);
1.5. is the employer of one or more employees that are employees:
1.5.1. covered by the Educational Services (Schools) General Staff Award (the
Award) being a modern award made by the Fair Work Commission; and
1.5.2. to whom that Award applies;
1.6. engages in Roman Catholic religious instruction;
1.7. receives funding from the Government of the Commonwealth of Australia for
the purpose of delivering education;
1.8. receives funding from the Government of the State of Western Australia for the
purpose of delivering education;
1.9. employs one or more persons who are:
1.9.1. principally employed to provide, or to assist in providing, educational
instruction or who are employed in any other capacity; and
1.9.2. are not employed as teachers.
1.10. proposes to be represented in any bargaining with the Applicant in respect of the
proposed agreement by CEWA;
1.11. is presently engaged in bargaining with the Applicant in relation to conditions
for employees engaged as teachers pursuant to a single interest bargaining
authorisation which is presently in force, issued on application by the entities
named in Annexure A (B2021/227, PR728298 as varied by B2023/101,
PR751277); and
1.12. is not engaged in bargaining for an agreement in respect of any of the employees
who would be covered by the proposed agreement.
2. Each of the entities named in Annexure A employs one or more persons who are:
https://www.fwc.gov.au/documents/awardsandorders/html/pr728298.htm
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr751277.pdf
[2023] FWCFB 177
15
2.1 a member of the Applicant; and
2.2 represented by the Applicant.
3. The parties are unaware of any enterprise agreement within the meaning of the Fair
Work Act 2009 (or its predecessor) which applies to or covers any of the entities named
in Annexure A which would cover the employees to which the proposed agreement
would apply;
4. Each of the entities named in Annexure A employs:
4.1 with the exception of Loreto Nedlands, more than 50 employees; and
4.2 in the case of Loreto Nedlands:
4.3 Loreto Nedlands has more than 20 employees;
4.4 Loreto Nedlands is an associated entity of Loreto Ministries Limited
(LML);
4.5 LML appoints the corporate directors of Loreto Nedlands;
4.6 LML is the sole owner of Loreto Nedlands; and
4.7 LML has more than 50 employees;
5. In respect of the employees who would be covered by the proposed agreement, each of
the entities named in Annexure A afford conditions that [] are not less favourable than
those provided by former [S]tate agreements imposing identical employment
obligations;
6. None of the employees who would be covered by the proposed agreement are engaged
in relation to general building and construction work;
7. No application has been made pursuant to s 248 by any of the employers named in
Annexure A for a single interest employer authorisation in respect of the employment
to which the proposed agreement would apply.
[2023] FWCFB 177
16
Annexure A – Western Australian Catholic Education Employers
[email addresses redacted]
Entity ABN/ACN Address Contact Person
1 Catholic Education
Western Australia
Ltd
ABN 47 634
504 135
PO Box 198
LEEDERVILLE WA
6903
Dr Debra Sayce
Executive
Director
2 Mercy Education
Limited
ACN 154 531
870
720 Heidelberg Road
ALPHINGTON VIC
3078
Mr Christopher
Houlihan
Chief Executive
3 Servite College
Council Inc
ABN 69 356
899 381
PO Box 263
Tuart Hill WA 6939
Ms Silvana Vicoli
Principal
4 Norbertine Canons
Inc
ABN 29 781
711 208
St Norbert College
QUEENS PARK WA
6107
Ms Sharon
Rainford
Principal
5 Mazenod College
Limited
ABN 53 128
213 267
55 Gladys Rd
LESMURDIE WA
6076
Mr Simon Harvey
Principal
6 John XXIII College
Inc
ABN 63 415
939 827
PO Box 226
CLAREMONT WA
6910
Mr Daniel Mahon
Principal
7 EREA Colleges
Ltd
ABN 71 659
944 831
PO Box 33185
Domain LPO
MELBOURNE VIC
3004
Mr Chris Woolley
Chief Executive
Officer
8 EREA Flexible
Schools Ltd
ABN 52 659
978 846
PO Box 2
Virginia BC QLD
4014
Mr Matt Hawkins
Chief Executive
Officer
9 Marist Schools
Australia
Limited
ABN 76 654
014 794
PO Box 1247
Mascot NSW 1460
Dr Frank Malloy
National Director
10 Loreto Nedlands
Limited
ABN 42 317
652 643
69 Webster Street
NEDLANDS WA
6009
Ms Rika Audres
Principal
Printed by authority of the Commonwealth Government Printer
PR766653
1 PR728298.
2 PR751277.
3 PR764138.
4 [2023] FWCFB 176 at [29].
5 Ibid at [34].
https://www.fwc.gov.au/documents/awardsandorders/html/pr728298.htm
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr751277.pdf
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr764138.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb176.pdf
