Ampol Qsr Pty Ltd, Consolidated Retail Pty Ltd
[2024] FWCA 4184
•28 NOVEMBER 2024
[2024] FWCA 4184
The attached document replaces the document previously issued with the above code on 28 November 2024.
The title of the Agreement as referred to in paragraph [1] has been corrected to read ‘Consolidated Retail & Ampol QSR Enterprise Agreement 2024’.
Associate to Deputy President Grayson.
Dated 28 November 2024.
| [2024] FWCA 4184 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Ampol Qsr Pty Ltd, Consolidated Retail Pty Ltd
(AG2024/3555)
CONSOLIDATED RETAIL & AMPOL QSR ENTERPRISE AGREEMENT 2024
| Fast food industry | |
| DEPUTY PRESIDENT GRAYSON | SYDNEY, 28 NOVEMBER 2024 |
Application for approval of the Consolidated Retail & Ampol QSR Enterprise Agreement 2024
An application has been made for the approval of an enterprise agreement known as the Consolidated Retail & Ampol QSR Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement and covers two employers; Consolidated Retail and Ampol QSR (the Employers).
The Employers notified of their intention to initiate bargaining and sent a Notice of Employee Representational Rights (NERR) to employees on 4 July 2024. The NERR complied with the requirements in reg. 2.05 of the Fair Work Regulations 2024 (Cth). Employees were provided with notice of the time, place and method of voting on 20 August 2024 and were provided with access to the proposed Agreement, information and briefings about the terms and effects of the proposed Agreement in the period 21 August 2024 and 26 August 2024. Voting occurred in the period from 28 August 2024 to 2 September 2024 and a majority of the employees who cast a vote in the ballot, voted to approve the proposed Agreement.
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 4 July 2024 and the Agreement was made on 2 September 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.
The Employers both filed Form F17A declarations in support of the application for approval of the Agreement, both made by Ben Niciak, Corporate Counsel – Employment & Industrial for Ampol QSR. The declarations state that the relevant award for the purpose of the BOOT is the Fast Food Industry Award 2020 (the Award), the terms of which are incorporated into the Agreement pursuant to clause 4.1 of the Agreement. The Forms F17A identified that one of the key aims of the Agreement was to achieve coverage consistency in respect of the employees engaged to work at the Employers’ Boost Juice, NoodleBox and Hungry Jacks franchises. The Forms F16 and F17A did not list any bargaining representatives other than the Employers.
On 24 September 2024, the Shop Distributive and Allied Employees’ Association (SDA) contacted the Commission and requested to be provided with the Forms F16, F17 and all other filed material in respect of the matter, identifying itself as being currently in bargaining with ‘most Hungry Jack’s operators’. As far as the SDA currently understood, it had not been involved in bargaining with respect to the Agreement. On 26 September 2024, the Commission provided redacted documents to the SDA. On 2 October 2024, the SDA filed a Form F18 which opposed the approval of the Agreement and raised both genuine agreement and BOOT concerns.
On 15 October 2024, my Chambers communicated preliminary concerns which had been identified with the application, indicated that the SDA had raised genuine agreement and BOOT concerns as disclosed by their Form F18, and listed the matter for mention on 17 October 2024. At the mention on 17 October 2024, directions were issued which programmed the matter for hearing and required the parties to file and serve evidence and submissions addressing the application, as well as requiring the parties to produce documents on a consent basis. These directions were complied with and on 21 November 2024, the SDA advised the Commission that the SDA no longer sought to be heard in relation to the application on the basis of the amended undertakings filed by the Employer. The SDA’s correspondence also advised that the parties’ consent position was for the application to be determined on the papers.
On 21 November 2024, my Chambers issued further supplementary directions for the Employers to file evidence and submissions addressing the question of whether the Employers were ‘related employers’ for the purposes of s.172(5A). The Employers complied with these directions on 21 November 2024.
On 22 November 2024, my Chambers communicated to the parties that, in circumstances where the SDA no longer sought to be heard, the hearing of the matter was vacated and the application for the approval of the Agreement was capable of determination on the basis of the material before the Commission, with the exception of one remaining issue in relation to the undertakings provided by the Employers. On 26 November 2024, the Employers provided further amended undertakings, and the SDA were provided a further 24 hours to advise of any opposition to the further amended undertakings. On 27 November 2024, the SDA advised the Commission that the approval of the Agreement was not opposed.
Related Employers
Having reviewed the material submitted by the Employers on 21 November 2024, I am satisfied that the Employers are both wholly-owned subsidiaries of Ampol Australia Management Pty Ltd ACN 000 139 953 and accordingly are ‘related employers’ by virtue of being ‘related bodies corporate’, per s.172(2)(5A)(b).[1]
Section 190 Undertakings
The employer provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.
Section 186, 187, 188 and 190
Based on the extensive submissions and evidence received by the Commission, and subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.
Section 183 Bargaining Representatives
The SDA, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.
In accordance with s.201(2), I note that the Agreement covers the SDA.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 December 2024. The nominal expiry date of the Agreement is 28 November 2028.
DEPUTY PRESIDENT
ANNEXURE A
[1] Per the meaning afforded to the term ‘related body corporate’ as defined in the Corporations Act 2009 (Cth), s.50.
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