Ananth Pty Ltd as the Trustee for Rajah Family Trust & Others T/A 7-Eleven

[2014] FWC 7836

[2014] FWC 7836

FAIR WORK COMMISSION

DECISION

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

Ananth Pty Ltd as the Trustee for Rajah Family Trust & Others T/A 7-Eleven
(B2014/1542)

COMMISSIONER BULL MELBOURNE, 18 NOVEMBER 2014

Application for a single interest employer authorisation.

[1] Ananth Pty Ltd as the Trustee for Rajah Family Trust & Others T/A 7-Eleven (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 First Choice Convenience Enterprise Agreement 2014 (the Agreement).

The 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)

The application

[5] The application as required by s.248(2)(a) of the Act states that the following employers, who are franchisees of the same franchisor, 7-Eleven, are to be covered by the proposed Agreement:

● Ananth Pty Ltd as the Trustee for Rajah Family Trust, ABN/ACN: 24 348 297 120

● Australian Aviation Equipment Pty. Ltd., ABN/ACN: 12 090 550 977

● Barak Nominees Pty Ltd as the Trustee for the P.J. Sutton Trust, ABN/ACN: 45 453 294 646

● Deccan International Pty Ltd, ABN/ACN: 28 133 789 670

● JPPS Enterprise Pty Ltd, ABN/ACN: 13 152 115 761

● Kinya Australia Pty Ltd, ABN/ACN: 40 135 086 949

● Lindex International Group Pty Ltd as the Trustee for Hanx Family Trust, ABN/ACN: 86 093 636 201

● MLA Trading Australia Pty. Ltd., ABN/ACN: 34 147 577 517

● MLNC Trading Australia Pty. Ltd., ABN/ACN: 25 147 576 672

● MTNP Enterprise Pty Ltd, ABN/ACN: 29 161 129 513

● P.W. & F.J. Pty Ltd as the Trustee for P W & F J Perera Family Trust, ABN/ACN: 98 977 655 086

● PSP International Trading Pty Ltd as the Trustee for Kumar Family Trust, ABN/ACN: 45 271 728 934

● Royal HZ Pty Ltd, ABN/ACN: 73 163 215 450

● S Y Q Investments Pty Ltd, ABN/ACN: 90 162 278 426

● Sin-Can Pty. Ltd., ABN/ACN: 83 091 280 205

● TNX Australia Pty Ltd, ABN/ACN: 63 101 988 390

[6] Pursuant to s.248(2)(b) of the Act the application provides that the employees to be covered by the proposed Agreement are Console Operator and Retail Assistant employees.

[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. Munasinighe Lalith Silva, Director of MLNC Trading Australia Pty. Ltd. states he is duly authorised to make this application on behalf of all employers outlined at paragraph 5 above.

[8] 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)

[9] Attached to the application were 16 statutory declarations from James Rajah, Pei Li Zhou, Peter Sutton, Kutub Khan, Jacqui Parker, Yi Zhu, Xue Hong Xie, Asoka Silva, Munasinighe Lalith Silva, Joseph Benedict, Pathirage Wijidia Perera, Kumar Sundara Kumar, Zhuorui Zhou, Yunqi Shi, Erdal Ismail and Yan Ju Yang. All statutory declarations state that the employers named in the application will be covered by the proposed Agreement and have agreed to bargain together and that no person coerced, or threatened to coerce the employers to agree to bargain together with the other employers.

[10] On the basis of the application that has been filed with the Commission together with the statutory declarations, I am satisfied that the pre-conditions set out in s.249(1)(a) and (b) have been met.

[11] In relation to the requirements set out in s.249(1)(c) of the Act, I am satisfied that these requirements have been met. That is, the statutory declaration filed by Munasinighe Lalith Silva states that the employers own and carry on similar business activities under the 7-Eleven franchise, such that the requirements of s.249(2)(a) are met.

[12] Having been satisfied as to the pre-conditions, set out at s.249(1), (2) and (3) of the Act, the Commission must therefore make the single interest employer authorisation.

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

● Ananth Pty Ltd as the Trustee for Rajah Family Trust, ABN/ACN: 24 348 297 120

● Australian Aviation Equipment Pty. Ltd., ABN/ACN: 12 090 550 977

● Barak Nominees Pty Ltd as the Trustee for the P.J. Sutton Trust, ABN/ACN: 45 453 294 646

● Deccan International Pty Ltd, ABN/ACN: 28 133 789 670

● JPPS Enterprise Pty Ltd, ABN/ACN: 13 152 115 761

● Kinya Australia Pty Ltd, ABN/ACN: 40 135 086 949

● Lindex International Group Pty Ltd as the Trustee for Hanx Family Trust, ABN/ACN: 86 093 636 201

● MLA Trading Australia Pty. Ltd., ABN/ACN: 34 147 577 517

● MLNC Trading Australia Pty. Ltd., ABN/ACN: 25 147 576 672

● MTNP Enterprise Pty Ltd, ABN/ACN: 29 161 129 513

● P.W. & F.J. Pty Ltd as the Trustee for P W & F J Perera Family Trust, ABN/ACN: 98 977 655 086

● PSP International Trading Pty Ltd as the Trustee for Kumar Family Trust, ABN/ACN: 45 271 728 934

● Royal HZ Pty Ltd, ABN/ACN: 73 163 215 450

● S Y Q Investments Pty Ltd, ABN/ACN: 90 162 278 426

● Sin-Can Pty. Ltd., ABN/ACN: 83 091 280 205

● TNX Australia Pty Ltd, ABN/ACN: 63 101 988 390

[14] The single interest employer authorisation will specify for the purposes of s.250(1)(b), that the employees who will be covered by the Agreement are Console Operator and Retail Assistant employees.

[15] Further, the single interest employer authorisation will specify, for the purposes of s.250(1)(c), that the person nominated by the employers to make applications under the Act as Munasinighe Lalith Silva, Director of MLNC Trading Australia Pty. Ltd.

[16] The single interest employer authorisation will come into operation from the date of this decision, 18 November 2014.

COMMISSIONER

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