[2016] FWC 1587

FAIR WORK COMMISSION

DECISION

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

Brunswick Property Partners Pty Ltd T/A Barry Plant
(B2016/339)

COMMISSIONER ROE

MELBOURNE, 11 MARCH 2016

Barry Plant Enterprise Agreement 2016 - Single Interest Employer Authorisation.

[1] On 2 March 2016 an application under Section 248 of the Fair Work Act 2009 (“the Act) was lodged in the Fair Work Commission by the employers listed in Appendix 1. The application concerns the proposed Barry Plant Enterprise Agreement 2016 (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 Appendix 1 to this decision.

[4] The person nominated by the employers to make applications pursuant to Section 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 the Fair Work Commission 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

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] Pursuant to Section 249(1) I am satisfied that the employers who will be covered by the proposed agreement have freely agreed to bargain together.

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

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

[9] 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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Appendix 1

The employees who will be covered by the proposed Barry Plant Enterprise Agreement 2016 are employed by the applicants in the following classifications:

Property Management

a. Property Management Supervisor

b. Property Management Representative

c. Property Management Associate

d. Leasing Consultant

Sales

a. Property Sales Supervisor

b. Property Sales Representative

c. Property Sales Associate

d. Auctioneer

Administration

a. Office / Marketing / Sales Manager

b. Consultant

c. Customer Relations / Business Development Manager

d. Administration / Marketing Coordinator

e. Accounts Person

f. Secretary

g. Administration Support

h. Marketing Assistant

i. Bookkeeper

j. IT Administrator

k. General Administration / Receptionist

The case of Brunswick Property Partners Pty Ltd T/A Barry Plant involved a dispute regarding the Barry Plant Enterprise Agreement 2016. Specifically, the issue at hand was whether the employer had properly exercised its single interest employer authorisation under the agreement. The case was heard in the Fair Work Commission.

The central legal issue before the commission was whether the employer had complied with the requirements for exercising its single interest employer authorisation. This involved interpreting the provisions of the enterprise agreement and determining whether the employer's actions were in accordance with those provisions. The dispute also raised questions about the nature of the authorisation and the circumstances under which it could be exercised.

In its decision, the commission carefully examined the language of the enterprise agreement and considered the submissions from both parties. The commission found that the employer had not properly exercised its single interest employer authorisation, as it had not followed the necessary procedures outlined in the agreement. As a result, the authorisation was invalid, and the employer was required to take certain remedial actions. The commission's decision was based on a detailed analysis of the agreement's terms and a consideration of the employer's actions in light of those terms.

The commission ordered the employer to take specific steps to rectify the situation, including re-engaging with the relevant parties and ensuring that all future authorisations were properly executed in accordance with the enterprise agreement. The decision serves as a reminder of the importance of adhering to the specific procedures outlined in enterprise agreements and the potential consequences of failing to do so.

Brunswick Property Partners Pty Ltd T/A Barry Plant

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established