BD Glenorchy Pty Ltd

[2012] FWA 5128

[2012] FWA 5128

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.248—Single interest employer authorisation

BD Glenorchy Pty Ltd
(B2012/789)

COMMISSIONER GAY MELBOURNE, 15 JUNE 2012

Regarding the proposed Bakers Delight (TAS) Enterprise Agreement 2012.

[1] BD Glenorchy Pty Ltd (the applicant) has made an application under section 248 of the Fair Work Act 2009 (the Act) for a single interest employer authorisation in respect of itself and two franchisees listed in the attached Appendix A (the franchisees). The application was made on 17 May 2012.

[2] In considering such an application, the relevant provisions of the Act are as follows:

“248 Single interest employer authorisations

(1) Two or more employers may apply to FWA 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.

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.”

[3] Attached to the application was a statutory declaration from Ms R Leshinsky, Group Human Resource Manager of Bakers Delight Holdings Ltd. The statutory declaration specified the employers who will be covered by the agreement, the classifications of the employees who will be covered by the agreement and the nomination of Ms Leshinsky as the person to make applications under the Act if the authorisation is made.

[4] Section 249 of the Act outlines when Fair Work Australia (FWA) must make a single interest employer authorisation. This section relevantly states:

“(1) FWA 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) FWA 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 FWA 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 FWA is satisfied that all of the employers are specified in a declaration made under section 247 in relation to the agreement.”

[5] On the basis of the application that has been lodged together with the statutory declaration, I am satisfied that the pre-conditions set out in section 249(1)(a) and section 249(1)(b) have been met.

[6] With respect to the requirements set out in section 249(1)(c), I am satisfied that these requirements have been met. This is on the basis that the statutory declaration of Ms Leshinsky makes it clear that the employers who are the subject of the authorisation carry on similar business activities under the same franchise and are franchisees of the same franchisor. As well, the statutory declaration indicates that the employers, franchisor and the franchisees who are the subject of the application have the necessary relationships such that the requirements of section 249(2)(a) are satisfied.

[7] Having been satisfied as to the pre-conditions set out in sections 249(1), (2) and (3), I must therefore make the single interest employer authorisation for which the application has been made.

[8] 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 BD Glenorchy Pty Ltd and the franchisees set out in Appendix A to this decision (section 250(1)(a)).

[9] 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 will be employees of the employers named in Appendix A to this decision employed in the following classifications:

(i) Sales Assistant;

(ii) Sales Manager;

(iii) Baker;

(iv) Baker’s Assistant;

(v) Baker’s Apprentice; and

(vi) Production Manager.

[10] 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 Ms Rachael Leshinsky, Group Human Resource Manager of the Bakers Delight Holdings Ltd or any person who succeeds her in that position.

[11] For the purposes of section 250(1)(d), there are no procedural rules which prescribe any other matter(s) to which I need to attend.

[12] The single interest employer authorisation will come into operation from the date of this decision, namely 15 June 2012.

COMMISSIONER

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Attachment A

Applicant	ABN/ACN
1.	BD Glenorchy Pty Ltd	43 153 181 483
2.	Hopsta Pty Ltd	49 109 988 730
3.	Make Dough Enterprises Pty Ltd	73 122 520 218