Application by Oporto (Franchising) Pty Ltd

[2016] FWC 2297

[2016] FWC 2297

DECISION

Fair Work Act 2009
s 248—Single interest employer authorisation
Oporto (Franchising) Pty Limited t/a Oporto and others
(B2016/426)
DEPUTY PRESIDENT SAMS	SYDNEY, 15 APRIL 2016
Application for a single interest employer authorisation.

[1]        On 1 April 2016 an application was made by Oporto (Franchising) Pty Limited t/a

Oporto and 26 other employers, pursuant to s 248 of the Fair Work Act 2009 (the ‘Act’) for a

single interest employer authorisation in relation to a proposed enterprise agreement to be

known as Oporto Enterprise Agreement 2016.

[2] Section 248 of the Act provides as follows:

“248 Single interest employer authorisations

(1) Two or more employers may apply to the 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) theperson (if any) nominated by the employers to make applications under this Act

if the authorisation is made.”

[3]        The application specifies the following employers (the ‘Employers’) to be covered by

the proposed agreement:

1. Bula Group Pty Ltd

2. Jban Pty Ltd

[2016] FWC 2297

3. Teamind Pty Ltd

4. Teamindeez Pty Ltd

5. Mohammad Haroon Parwani & Milad Parwani as Trustees for the Ghan Universe

Trust

6. AK&GSJ Pty Ltd

7. Rajput Group Pty Ltd

8. Vaghela Group Pty Ltd

9.    GASJ & AKS Pty Ltd

10. Velpula Group Pty Ltd

11. SBHA Pty Ltd

12. Paletusk Pty Ltd

13. Vashist Ventures Pty Ltd

14. Yinghengda Pty Ltd

15. Inspire International Holdings Pty Ltd

16. Cmar Group Ply Ltd

17. Trahcolyn Pty Ltd

18. Tryn Investments Pty Ltd

19. Adomoose Pty Ltd

20. Slar Pty Ltd

21. Branxton Protective Coatings Pty Ltd

22. Dutt Investments Pty Ltd as Trustee for R&S Dutt Family Trust

23. Hare Krishna Haribol Pty Ltd

24. Samich NSW Pty Ltd

25. Mata Sherawali and Guru Nanak Pty Limited

26. Gursirat Pty Ltd

27. Oporto (Franchising) Pty Limited

[4]        The application specifies the employees who will be covered by the proposed

agreement are those employed by the Employers as Customer Service Assistants, Food

Preparation Assistants, Delivery Drivers, Supervisors and/or Managers.

[5]        The application specifies that Ms Annette Milne, the Employee Relations Consultant

for Oporto (Franchising) Pty Limited, is the person nominated by the Employers to make

applications under this Act if the authorisation is made (s 248(2)(c)). Ms Milne provided a
[2016] FWC 2297

statutory declaration to support the application. The declaration states that the Employers have

agreed to bargain together and that no person coerced, or threatened to coerce, any of the

Employers to agree to bargain together. Annexed to the statutory declaration are written

declarations and authorisations from each of the Employers in support of the application.

[6] Section 249 of the Act sets out the matters to be considered by the Commission when

determining applications of this kind:

“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) 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 the 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 the FWC is satisfied that all of the

employers are specified in a declaration made under section 247 in relation to the

agreement.

Operation of authorisation

(4) The authorisation:

(a) comes into operation on the day on which it is made; and

[2016] FWC 2297

(b) ceases to be in operation at the earlier of the following:

(i) the day on which 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.

[7]        It is to be observed that if the Commission is satisfied that all the requirements set out

in ss 1-3 of s 249 of the Act have been met, the Commission must make the single interest

employer authorisation. Section 249(4) deals with the operation and duration of the

authorisation.

[8]        Given the nature of this application, I propose to determine it ‘on the papers’.

[9]        Having considered the terms of the application, the statutory declaration of Ms Milne

and the accompanying declarations and authorisations from the Employers listed in paragraph

3 above, I am satisfied that the Employers have agreed to bargain together and have not been

subject to any coercion and that the relevant employers are franchisees of the same franchisor.

Accordingly, I will issue a single interest employer authorisation for the Employers to bargain

together for the proposed agreement.

[10] In accordance with s 249(4) of the Act, the single interest employer authorisation

comes into operation on 15 April 2016 and will cease operation on the day on which the

proposed enterprise agreement is made or on 15 April 2017, whichever is the earlier. An order

to this effect will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

[2016] FWC 2297

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