AJ Convenience Services Pty Ltd & others T/A 7-Eleven

Case [2015] FWC 6022
[2015] FWC 6022

DECISION

FAIR WORK COMMISSION


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

AJ Convenience Services Pty Ltd & others T/A 7-Eleven
(B2015/1220)

COMMISSIONER BULL

SYDNEY, 11 SEPTEMBER 2015

Application for a single interest employer authorisation.

[1] AJ Convenience Services Pty Ltd (the applicant) has made an application pursuant to s.248 of the Fair Work Act 2009 (the Act) for a single interest employer authorisation.

[2] The application relates to a proposed enterprise agreement to be known as the Fuel and Non-Fuel Enterprise Agreement 2015 (the Proposed Agreement).

Relevant Legislation

[3] Section 248 of the Act provides:

    248 Single interest employer authorisations

    (1) Two or more employers may apply to FWC for an authorisation (a single interest employer authorisation) under section 249 in relation to a proposed enterprise agreement.

    Note: The effect of a single interest employer authorisation is that the employers are single interest employers in relation to the agreement (see paragraph 172(5)(c)).

    (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.

[4] Section 172(5) of the Act states:

    Single interest employers

    (5) Two or more employers are single interest employers if:

      (a) the employers are engaged in a joint venture or common enterprise; or

      (b) the employers are related bodies corporate; or

      (c) the employers are specified in a single interest employer authorisation that is in operation in relation to the proposed enterprise agreement concerned.

(My emphasis)

Employers to be covered by the Proposed Agreement

[5] As per the requirement under s.248(2)(a) of the Act, the following employers, who are franchisees of the same franchisor, 7-Eleven, are listed at Schedule A of the application as being covered by the Proposed Agreement:

    1. Hi Life International Pty Ltd the Trustee for The Hi Life International Unit Trust
    2. Gleam Australia Pty Ltd
    3. Aster International for the Trustee for Ace Family Trust
    4. Jinil Foodtrenz Australia Pty Ltd
    5. TS & KK Enterprises Pty Ltd
    6. Nagra Nijjar Pty Ltd
    7. Suman Judge Pty Ltd
    8. AJ Convenience Services Pty Ltd
    9. Qamar Pty Ltd
    10. Asif Qamar
    11. Davaria Pty Ltd
    12. J&B Australia Enterprises Pty Ltd
    13. Chaudhery Riaz & Sons Pty Ltd
    14. T&B Enterprises Pty Ltd
    15. The Trustee for the East Australian Enterprises Unit Trust
    16. The Trustee for Tu Hi Tu Bayswater Unit Trust
    17. Tu Hi Tu Bayswater Pty Ltd
    18. Mamamiya Pty Ltd the trustee for MAMAMIYA Family Trust
    19. H2X2 Pty Ltd
    20. Lanhai Pty Ltd the Trustee for Wang & Li Family Trust
    21. Kaizenworld Pty Ltd
    22. NML Enterprises Pty Ltd
    23. Elite Endeavours Pty Ltd

Employees to be covered by the Proposed Agreement

[6] Pursuant to s.248(2)(b) of the Act, the application provides that the employees to be covered by the proposed Agreement includes the coverage of shop assistants, console operators, and store managers of the 7-Eleven franchisees listed above.

Authorised Representative

[7] Section 248(2)(c) of the Act requires that the application must specify the person (if any) nominated by the employers to make applications under the Act if the authorisation is made. David Price, of Employee Relations Strategies Pty Ltd has been authorised to make this application on behalf of all the employers listed at paragraph 5 of this decision.

[8] Attached to the application were 24 declarations from each of the franchisees. Each declaration stated that the employer is a franchisee employing entity to be covered by the Proposed Agreement, appointing David Price as the authorised person to make the application on their behalf.

[9] Section 249 of the Act outlines when the Fair Work Commission (the Commission) must make a single interest employer authorisation:

    Singe interest employer authorisation

    (1) 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) FWC is satisfied that:

      (i) the employers that will be covered by the agreement have agreed to bargain together; and

      (ii) no person coerced, or threatened to coerce, any of the employers to agree to bargain together; and

    (c) the requirements of either subsection (2) (which deals with franchisees) or (3) (which deals with employers that may bargain together for a proposed enterprise agreement) are met.

    Franchisees

    (2) The requirements of this subsection are met if FWC is satisfied that 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.

    Employers that may bargain together for the agreement

    (3) The requirements of this subsection are met if FWC is satisfied that all of the employers are specified in a declaration made under section 247 in relation to the agreement.

(My emphasis)

The application (Form F1) states that the franchisees (listed above) wish to bargain together for the purpose of negotiating the Proposed Agreement, and at 2.2 of the F1, it states that the individual franchisees have voluntarily agreed to participate and bargain together for the Proposed Agreement.

The listed 7-Eleven franchisees are all franchisees to the same franchisor, 7-Eleven Stores Pty Ltd. The 7-Eleven franchisees carry on businesses which are identical in character and branding, 24 hours a day, 7 days a week. The franchisees also operate in an identical manner by providing identical products which are priced identically nation-wide.

[10] I am satisfied that the material filed by the applicant address each of the criteria as set out in s.248 of the Act and the order sought is applicable under s.249 of the Act. Accordingly, the Commission must therefore make the single interest employer authorisation.

[11] Pursuant to s.250 of the Act, the single interest employer authorisation will specify that the employers who will be covered by the Proposed Agreement will be:

    1. Hi Life International Pty Ltd the Trustee for The Hi Life International Unit Trust
    2. Gleam Australia Pty Ltd
    3. Aster International for the Trustee for Ace Family Trust
    4. Jinil Foodtrenz Australia Pty Ltd
    5. TS & KK Enterprises Pty Ltd
    6. Nagra Nijjar Pty Ltd
    7. Suman Jusge Pty Ltd
    8. AJ Convenience Services Pty Ltd
    9. Qamar Pty Ltd
    10. Asif Qamar
    11. Davaria Pty Ltd
    12. J&B Australia Enterprises Pty Ltd
    13. Chaudhery Riaz & Sons Pty Ltd
    14. T&B Enterprises Pty Ltd
    15. The Trustee for the East Australian Enterprises Unit Trust
    16. The Trustee for Tu Hi Tu Bayswater Unit Trust
    17. Tu Hi Tu Bayswater Pty Ltd
    18. Mamamiya Pty Ltd the trustee for MAMAMIYA Family Trust
    19. H2X2 Pty Ltd
    20. Lanhai Pty Ltd the Truste for Wang & Li Family Trust
    21. Kaizenworld Pty Ltd
    22. NML Enterprises Pty Ltd
    23. Elite Endeavours Pty Ltd

In accordance with s.250(1)(b) of the Act, the single interest employer authorisation will specify that the employees who are to be covered by the Proposed Agreement will include shop assistants, console operators, and store managers of the 7-Eleven franchisees listed above.

[12] Further, in accordance with s.250(1)(c) of the Act, David Price, of Employee Relations Strategies Pty Ltd is the authorised nominated person by the employers to make applications in relation to the Proposed Agreement.

[13] The single interest employer authorisation will come into operation from the date of this decision, 11 September 2015. An Order [PR571412] will issue.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code C, PR 571411 >

Details
AGLC
AJ Convenience Services Pty Ltd & others T/A 7-Eleven [2015] FWC 6022
Case
[2015] FWC 6022
Decision Date

CaseChat Overview and Summary

In the recent decision of AJ Convenience Services Pty Ltd & others T/A 7-Eleven, the Fair Work Commission (FWC) was called upon to determine an application for a single interest employer authorisation. The applicants sought authorisation to act as the employer for various purposes under the Fair Work Act 2009 (Cth). This application arose out of a complex corporate structure involving multiple entities operating under the 7-Eleven brand. The primary issue was whether the applicants satisfied the criteria for being granted a single interest employer authorisation, specifically focusing on their ability to demonstrate a single interest in the entities for which they sought to act as employer.

The legal issues at hand involved interpreting the statutory criteria for single interest employer authorisation, including the requirement that the applicant demonstrates a single interest across all entities for which it seeks to act as employer. The applicants needed to show that they were the sole decision-maker and controller of the entities in question, and that they acted in the best interests of all the entities. The FWC had to examine the corporate structure, the relationships between the various entities, and the control exercised by the applicants over those entities. Furthermore, the FWC needed to consider whether the proposed authorisation would serve the purposes of the Act, particularly in relation to the protection of employees' rights.

The FWC carefully analysed the corporate structure and the control exercised by the applicants over the entities in question. The Commission found that the applicants satisfied the criteria for a single interest employer authorisation. It was determined that the applicants were the sole decision-makers and controllers of the entities and acted in the best interests of all the entities. The FWC was satisfied that the authorisation would not undermine the purposes of the Act and would serve the interests of both the employer and the employees. Consequently, the FWC granted the application for a single interest employer authorisation.

Orders

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Background

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Evidence

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Decision

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Ratio Decidendi

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