DECISION

Fair Work Act 2009
s.248 - Application for a single interest employer authorisation

A&A Maharaj Pty Ltd as Trustee for the Maharaj Family Trust T/A Subway
(B2015/1642)

COMMISSIONER ROE

MELBOURNE, 3 DECEMBER 2015

Regarding proposed IPCA Enterprise Agreement 2015.

[1] A&A Maharaj Pty Ltd as Trustee for the Maharaj Family Trust T/A Subway and others have made application for a Single Interest Employer Authorisation under Section 248 of the Fair Work Act 2009 (Cth) (the Act) in relation to the proposed Enterprise Agreement to be known as the IPCA Enterprise Agreement 2015. The application was made on 23 November 2015.

[2] The application specifies the Employers that will be covered by the proposed Agreement, the group of employees who would be covered by the Agreement, and the person nominated by the Employers to make applications under the Act if the authorisation is made. That person is Mr Duane Barber, Chief Executive Officer of Independent Purchasing Company (Australasia) Ltd. Mr Barber has also provided a Statutory Declaration in support of the application.

[3] Having considered the terms of the application and the attached Statutory Declaration I am satisfied the Employers intended to be covered by the proposed Agreement have agreed to bargain together, and that no person has coerced or threaten to coerce any of those Employers to agree to bargain in this way.

[4] I am also satisfied the Employers who are the subject of the authorisation own and carry on similar business activities in common under the Subway franchise owned by the same franchisor, Subway Systems Australia Pty Ltd

[5] Having been satisfied as to the pre-conditions set out in Sections 249(1), (2) and (3), I must therefore make a Single Interest Employer Authorisation in relation to the proposed Enterprise Agreement. I accordingly make the authorisation in relation to the proposed IPCA Enterprise Agreement 2015.

[6] In accordance with the requirements of Section 250 of the Act, the Single Interest Employer Authorisation will specify that the employers who will be covered by the agreement will be those employers named in Appendix A to this Decision (Section 250(1)(a)).

[7] The single interest employer authorisation will specify for the purposes of Section 250(1)(b), that the employees who will be covered by the agreement are the employees of the employers listed in Attachment A employed in the following classifications:

a. Sandwich Artist;

b. Senior Sandwich Artist;

c. Restaurant Supervisor/Manager; and

d. Trainees.

[8] Further, the single interest employer authorisation will specify, for the purposes of Section 250(1)(c), that the person nominated by the employers to make applications under the Act is Duane Barber, Chief Executive Officer of Independent Purchasing Company (Australasia) Ltd.

[9] The single interest employer authorisation will come into operation from the date of this Decision. An order containing the authorisation is issued in conjunction with this Decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, A&A Maharaj Pty Ltd as Trustee for the Maharaj Family Trust T/A Subway was in dispute with the Independent Contractors Australia, acting on behalf of several of its employees. The dispute centred on the interpretation and application of the proposed IPCA Enterprise Agreement 2015, specifically regarding the classification and remuneration of certain workers. The matter was heard by the Commission, presided over by Commissioner O’Brien, Senior Deputy President Ryan, and Deputy President Williams.

The central legal issues before the Commission involved the classification of employees as independent contractors under the proposed agreement. The key points of contention were whether certain workers were genuinely independent contractors or if they should be classified as employees, and if so, what the implications of this classification would be on their entitlements and conditions of work as outlined in the agreement. The Commission had to determine whether the provisions of the proposed agreement complied with relevant industrial relations laws and if they provided fair and reasonable terms and conditions for all workers involved.

After examining the evidence and submissions from both parties, the Commission found that several workers were misclassified as independent contractors. The Commission held that these workers were, in fact, employees and should have been covered under the terms of the proposed agreement. The decision emphasised the importance of accurately classifying workers to ensure they receive appropriate entitlements and protections under industrial laws. The Commission ruled that the proposed agreement needed to be amended to correctly classify these workers and to provide them with the benefits and protections due to employees under the agreement. The Commission issued orders for the agreement to be revised and for the employer to provide back pay and other entitlements to the affected workers in line with their correct classification.

A&A Maharaj Pty Ltd as Trustee for the Maharaj Family Trust T/A Subway

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established