Bendigo PS Pty Ltd and Others

[2012] FWA 4874

[2012] FWA 4874

FAIR WORK AUSTRALIA

DECISION

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

Bendigo PS Pty Ltd and Others
(B2012/804)

COMMISSIONER LEWIN MELBOURNE, 13 JUNE 2012

Barry Plant Enterprise Agreement 2012 - single interest employer authorisation

[1] On 21 May 2012 an application under s.248 of the Fair Work Act 2009 (“the Act) was lodged in Fair Work Australia by the employers listed in Annexure A. The application concerns the proposed Barry Plant Enterprise Agreement 2012 (the proposed agreement). Section 248 is set out below:-

“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.”

[2] The applicants are franchisees in the real estate industry of Barry Plant Group Pty Ltd (Barry Plant) in Victoria.

[3] The employers to be covered by the proposed agreement are those listed in Annexure B to this decision.

[4] The person nominated by the employers to make applications pursuant to s.248(2)(c) is Shiona Pearson, Marketing and Communications Manager of Barry Plant, the franchisor.

[5] The effect of the authorisation as sought is to allow two or more single interest employers to bargain together in relation to the proposed agreement. Section 249 of theAct specifies when Fair Work Australia must make a single interest employer authorisation:

“249 When FWA must make a single interest employer authorisation

Single interest employer authorisation

(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.

Operation of authorisation

(4) The authorisation:

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

(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.”

[6] After reading the application and the materials filed with the application I required further material in order to reach the satisfaction required by the statutory provisions. That material was filed on 6 and 13 June 2012 and has been marked Exhibit A. Exhibit A provides signed indication of the agreement of each of the franchisees of Barry Plant that have agreed to bargain together.

[7] Pursuant to s.249(1) I am now satisfied, from the information provided, that the employers who will be covered by the proposed agreement have freely agreed to bargain together.

[8] Pursuant to s.249(2)(a) I am satisfied that all of these employers are franchisees of the same franchisor.

[9] I must therefore make a single interest employer authorisation pursuant to s. 249(1).

[10] The authorisation will come into operation on the day on which it is made. The authorisation will cease to be in operation on the day which the proposed agreement is made or 12 months from the day of the authorisation, whichever is earlier. An order will issue accordingly.

COMMISSIONER

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Annexure A

Annexure B - Employees To Be Covered By The Proposed Agreement

Property Management

a) Manager

b) Property Manager

c) Assistant Property Manager.

Sales

a) Manager

b) Sales Agent

c) Assistant Sales Agent.

Administration

a) Manager

b) Senior Administration Officer

c) Trust Accountant

d) Personal Assistant

e) Administration Officer

f) Receptionist.