Domino's Pizza Enterprises Limited
[2009] FWA 493
•13 NOVEMBER 2009
[2009] FWA 493 |
|
DECISION |
Fair Work Act 2009
s.248 - Application for a single interest employer authorisation
(B2009/10734)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 13 NOVEMBER 2009 |
Single interest employer authorisation – franchisees – flaws in original application - s.248 - multiple employers taken to be single interest employers in relation to the agreement – s.172(5)(c) – FWA discretion - authorisation not a static instrument.
[1] On 28 September 2009 Fair Work Australia (“FWA”) received an application by Domino’s Pizza Enterprises Limited (“the Applicant”) made pursuant to s.248 of the Fair Work Act2009 (“the FW Act”). The Applicant seeks a single interest employer authorisation in respect of itself and 156 franchisees listed in the attached Schedule One (“the Franchisees”).
[2] Section 248 of the Act falls within Subdivision B of Part 2-4 of the Act, and is headed - Single interest employer authorisations. Section 248 reads relevantly for immediate purposes 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.
[3] 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)
[4] Attached to the application were authorisation forms purportedly signed by each of the 156 Franchisees.
[5] However, the requirements of s.248(2)(a), (b) and (c) and s.249 of the FW Act were not satisfied upon the initial application being made because a number of the authorisation forms failed to:
(a) properly identify the name of the Franchisee, or failed to do so with sufficient clarity;
(b) include a complete copy of the authorisation form;
(c) state the name of the authorised representative of the Franchisee, or failed to do so with sufficient clarity; or
(d) include the title of the authorised representative of the Franchisee.
[6] Following discussions with the Applicant’s representative and a review of the full range of authorisation forms provided by the Franchisees, the application was appropriately amended (with the business identity of the Franchisees and the relevant authorisations subsequently clarified and re-filed on 10 November 2009).
[7] In light of this amended material, which explains the delay between this decision and the date of lodgement – I am now satisfied that the application meets the requirements of s.248(2)(a), (b) and (c) of the FW Act in that it specifies that:
(a) the employers that will be covered by the agreement (with such employers being the Applicant and those specified in Schedule One) 1;
(b) the employees who are to be covered by the agreement, who in each instance are the employees of the Applicant and each of the employers specified in Schedule One 2; and
(c) the Applicant and the Franchisees nominated an authorised representative to make any future applications under the FW Act. 3
[8] Section 249 of the FW Act outlines when 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.”
[9] As I mentioned above, the original application in many instances did not provide sufficient clarity as to the authenticity of the agreement on the part of the Franchisees to bargain together and to do so absent any coercion.
[10] The amended materials now supplied, however, have overcome these deficiencies. The preconditions for s.249(1)(a) and s.249(1)(b) of the FW Act, therefore, are now met in so far the application for the authorisation has been made, which has been cited above. 4
[11] The requirements for s.249(1)(c) of the FW Act, as cited above, are satisfied for the following reasons:
(a) For the purposes of s.249(2)(a) of the FW Act requires that FWA be satisfied for the purposes of the application that the employers who are the subject of the application carry on similar business activities under the same franchise and franchisees of the same franchisor; and
(b) The Application before me makes it clear by way of that the employers, franchisor and franchisees who are the subject of the application have the necessary relationships such that the requirements of s.249(2)(a) of the FW Act are satisfied.
[12] In view of these findings, I am satisfied I should make the order providing for the authorisation as sought by the application before me.
[13] I observe that the duration of the order at first instance that I make is regulated not by FWA’s discretion by virtue of the operation of s.249(4) of the FW Act, which reads as follows:
“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.”
[14] Despite this, the period of operation of the authorisation may also be extended on application, if FWA is of the view that:
- there is a the employer and employees who are the subject of the original authorisation have a reasonable prospect of making the agreement; and
- it is appropriate in the circumstances, as FWA may decide as a matter of broad discretion, to extend the operative life of the authorisation.
[15] Section 252 of the Act so provides as follows:
“252 Variation to extend period single interest employer authorisation is in operation
(1) A bargaining representative for a proposed enterprise agreement to which a single interest employer authorisation relates may apply to FWA to vary the authorisation to extend the period for which the authorisation is in operation.
(2) FWA may vary the authorisation to extend the period if FWA is satisfied that:
(a) there are reasonable prospects that the agreement will be made if the authorisation is in operation for a longer period; and
(b) it is appropriate in all the circumstances to extend the period.”
[16] There are no procedural matters in respect of s.250(1)(d) of the FW Act that are relevant to the authorisation that I will make.
[17] Section 250(2) of the FW Act states as follows:
“Authorisation may relate to only some of employers or employees
(2) If FWA is satisfied of the matters specified in subsection 249(2) or (3) (which deal with franchisees and employers that may bargain together for a proposed enterprise agreement) in relation to only some of the employers that will be covered by the agreement, FWA may make a single interest employer authorisation specifying those employers and their employees only.”
[18] There is nothing before me that leads me to believe that the necessary employer-franchisee-franchisor relationship as declared is inaccurate or improperly founded in respect of each of the employers who are to be covered by the order making for the authorisation that I will make.
[19] That said, the authorisation I will make by order is not a static instrument. Section 251 of the FW Act reads as follows:
“251 Variation of single interest employer authorisations
Variation to remove employer
(1) An employer specified in a single interest employer authorisation in relation to a proposed enterprise agreement may apply to FWA for a variation of the authorisation to remove the employer’s name from the authorisation.
(2) If an application is made under subsection (1), FWA must vary the authorisation to remove the employer’s name if FWA is satisfied that, because of a change in the employer’s circumstances, it is no longer appropriate for the employer to be specified in the authorisation.
Variation to add employer
(3) An employer that is not specified in a single interest employer authorisation may apply to FWA for a variation of the authorisation to add the employer’s name to the authorisation.
(4) If an application is made under subsection (3), FWA must vary the authorisation to add the employer’s name if FWA is satisfied that:
(a) each employer specified in the authorisation has agreed to the employer’s name being added; and
(b) no person coerced, or threatened to coerce, the employer to make the application; and
(c) the requirements of subsection 249(2) or (3) (which deal with franchisees and employers that may bargain together for a proposed enterprise agreement) are met.”
[20] Employers (and their employees) may be excised from the authorisation as their circumstances change.
[21] Further, new employers and their employees may be covered by the authorisation if:
- they manifest the requisite relationship;
- the employers who are already covered by the authorisation agree to the inclusion of the employer; and
- the employer has not been coerced or otherwise into making the application
[22] Section 249(1) of the FW Act states that Fair Work Australia “must” make the single interest authorisation employer authorisation if it is satisfied of the various factual preconditions required to be established under s.249 of the FW Act. Those factual preconditions have been met in each instance, so I must now make the authorisation for which application has been made.
[23] Section 250 of the Act reads as follows:
“(1) A single interest employer authorisation in relation to a proposed enterprise agreement 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;
(d) any other matter prescribed by the procedural rules.”
[24] The single issue authorisation will specify, for purposes of s.250(1)(a) of the FW Act that the employers that will be covered by the agreement will be Domino's Pizza Enterprises Limited and the Franchisees.
[25] The single issue authorisation will specify, for purposes of s.250(1)(b) of the FW Act that the employees that will be covered by the agreement will be:
“Employees employed by the Franchisor or the Franchisees (excluding working directors and area managers, whatever called) who perform any or all of the duties listed below:
(a) preparation, assembly, cooking or packing of product for sale;
(b) maintenance of the work area at a standard of cleanliness as determined by the (b) Franchisee (or the Franchisor);
(c) cleaning of cooking utensils, cutlery and glassware;
(d) performance of customer service functions including the taking of orders by any means, and the entering of information onto a computer;
(e) the receipt of monies or other duties involving customer contact except the delivery of product to the customer outside of the retail food establishment; or
(f) the distribution or use of promotional material by any means.”
[26] The single interest authorisation will specify, for purposes of s.250(1)(c) of the FW Act that the person nominated by the employers to make applications under the FW Act is the Franchisor’s General Counsel and Company Secretary, Craig Anthony Ryan or any person who succeeds him in that position.
[27] For the purposes of s.250(1)(d) of the FW Act, there are no procedural rules prescribing any other matter(s) to which I need to attend.
[28] Section 249(4) of the FW Act reads:
“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.”
[29] Because I am satisfied that the application has met the preconditions stipulated in the FW Act, in the manner I have set out above, I must make the single interest authorisation as sought. The authorisation will come into operation from the date of this decision, which is 13 November 2009.
[30] An order providing for the authorisation in the terms discussed above will issue along with this decision.
SENIOR DEPUTY PRESIDENT
Schedule 1 – List of Franchisees
1. Trew Pizzas Pty Ltd
2. Whono’s Pty Ltd
3. Perfect 10 Pizza Company Pty Ltd
4. Razielle Pty Ltd
5. Sormil Pty Ltd and BJ Marquez Pty Ltd
6. Mickyboy Enterprises Pty Ltd ATF the Piatek Trust, Hobo Enterprises Pty Ltd ATF the Graham Trust and Fingy Pty Ltd ATF the Fing Trust
7. Delrich View Pty Ltd ATF the Geoff Gleeson Family Trust
8. A Burt Investments Pty Ltd
9. Seagan Pty Ltd
10. Unleashed Potential Pty Ltd
11. High Five Pizza ATF the Moore Family Trust
12. Tallantey Pty Ltd ATF the Tallantey Unit Trust
13. G S N C Enterprises Pty Ltd
14. Pizza Dispatch Pty Ltd
15. SCP Pizza Company Pty Ltd
16. Pizza Pro Pty Ltd
17. Antecello Pty Ltd ATF the Antecello Discretionary Trust
18. Yum Yum Pizza Pty Ltd
19. Whak Enterprises Pty Ltd
20. Kanji Pty Ltd
21. Pye Holdings Pty Ltd
22. Wilbe Pty Ltd
23. Pye Pye Pty Ltd ATFT Holmes Family Trust
24. Janchiri Pty Ltd
25. Doughmaker (Toormina) Pty Ltd
26. TCF Pizza’s Pty Ltd
27. Zeal Bhatia Pty Ltd ATF the Bhatia Family Trust
28. East Coast Foods Pty Ltd ATF the Rowe Family Trust
29. Vanitas Pty Ltd ATF the Eternita Trust
30. Pad & Sons Pty Ltd ATF the Asel Family Trust
31. Rozelle N Holdings Pty Ltd
32. J.M.S. Pizza Pty Ltd
33. Grosscorp Pty Ltd
34. Shree Swaminarayan Pty Ltd
35. Fastlane Management Pty Ltd
36. Austotal Enterprise Partners Pty Ltd ATF the Bachu Family Trust
37. Shreenathji Pty Ltd
38. Damtel Pty Ltd
39. KACSPI Pty Ltd
40. Platinum Pizza Pty Ltd ATFT Hornsby Trust
41. Patel Brothers Restaurants Pty Ltd
42. Cultura Pty Ltd ATF the Etruscan Trust
43. Western Sydney Pizza Pty Ltd ATFT WSP Unit Trust
44. Pizza Maniacs Pty Ltd
45. Diamond Pizza Pty Ltd ATFT Diamond Pizza Unit Trust
46. OPM Services Pty Ltd
47. TPDP Pty Ltd ATF the Villawood Unit Trust
48. Azady Pty Ltd
49. RAWF Pty Ltd
50. Felice Group Pty Ltd
51. Fastlane Pizza Pty Ltd ATF the Pizza First Unit Trust
52. Liberta Enterprises Pty Ltd ATF the Leva Trust
53. TPDR Pty Ltd ATF the Steven Yeung Family Trust
54. Versacorp Enterprise Pty Ltd ATFT Lee & Tu Family Trust
55. Forest Pizza Pty Ltd
56. Guruom Australia Pty Ltd
57. Newcastle City Pizza Pty Ltd ATFT Newcastle City Unit Trust
58. Blacktown Pizza Pty Ltd ATFT Blacktown Pizza Unit Trust
59. Mount Pritchard Pizza Pty Ltd ATFT Mount Pritchard Unit Trust
60. Dharti Ind-Aus Business Pty Ltd
61. Able Service Pty Ltd
62. Omkar Holding Pty Ltd
63. Transcendgroup Pty Ltd
64. Pissa Pty Ltd
65. Neblar Pty Ltd
66. Hobes Pty Ltd ATF the Graham No 2 Trust, Rybash Pty Ltd ATF the Piatek No 2 Trust and Fingy No 2 Pty Ltd ATF the Fing No 2 Trust
67. DJM Enterprises (ACT) Pty Ltd
68. 5 On The Side Pty Ltd ATF the Sickinger Family Trust
69. Kimax Investments Pty Ltd
70. Mickyboy Enterprises Pty Ltd ATF the Piatek Trust, Hobo Enterprises Pty Ltd ATF the Graham Trust and Fingy Pty Ltd ATF the Fing Trust
71. PAAB Pizza Pty Ltd
72. Pizza Perfection Pty Ltd
73. Tong & Lok Investments Pty Ltd ATF the Tong Lok Family Trust
74. Burness Foods Pty Ltd ATF the Burness Family Trust No 1
75. JC Enterprises (Aust) Pty Ltd
76. Top Gear Pizza Pty Ltd
77. JAVB Pty Ltd
78. Verrall Pty Ltd
79. Bayside Pizza (QLD) Pty Ltd
80. Wooden Enterprises Pty Ltd ATF the A Wood Family Trust
81. Double Plus Pty Ltd
82. Street Pizza Pty Ltd ATF the Street Pizza Trust
83. High Energy Pizza Pty Ltd ATF the High Energy Pizza Trust
84. CL MJ’s Pty Ltd ATF the CL MJ’s Family Trust
85. N & NVJ’s Pty Ltd
86. Delisi Pty Ltd
87. K & M Lacey Enterprises Pty Ltd
88. Younger Services Pty Ltd
89. Burrow Pty Ltd ATF the Burrow Family Trust
90. Brocklesby Pty Ltd ATF the Brocklesby Family Trust
91. BCM Sheppard Pty Ltd ATF the B & M Sheppard Family Trust
92. Dominord Pty Ltd
93. Zoron2 Pty Ltd
94. Lynch Investments Pty Ltd ATF the Lynch Family Trust
95. Mitchell Ross Pty Ltd
96. B G Roth Pty Ltd ATF the Nicho Family Trust
97. Cotter Enterprises Pty Ltd
98. Fun Time Pizza Pty Ltd
99. TPAC Pizza Pty Ltd
100. Gilbridge Pty Ltd ATF the Gilbridge Trust
101. Southside Pizza Pty Ltd ATF the Mark Coyle Family Trust
102. B-B & B Pty Ltd
103. Jamestelle Consolidated Holdings Pty Ltd
104. R. & T. Wells Pty Ltd
105. High Five Pizza Pty Ltd ATF the Moore Family Trust
106. Jam Pizza Pty Ltd
107. Down South Pizza Pty Ltd ATF the Cottrell Family Trust
108. Altam Pizza Pty Ltd ATF the Vreeken Family Trust
109. Pizza West Pty Ltd ATFT Going Fishing Trust
110. Surfwest Holdings Pty Ltd
111. Natcliff Investments Pty Ltd ATF the White Investment Trust
112. Xtreme GML Pty Ltd
113. Gohard WA Pty Ltd ATF the Nils David Gornall Family Trust and Mutley’s Pizza Pty Ltd ATF the Matt Varis Family Trust
114. Team Western Australia Pty Ltd ATFT White Family Trust
115. GAAT Group Pty Ltd ATF the GNT Trust
116. Kando Pizza Pty Ltd ATF the Hardy Family Trust
117. Bansal Australasia Pty Ltd
118. Alnas Holdings Pty Ltd
119. Fortune Tree Pty Ltd ATF the Circle Eight Family Trust
120. HG First Pty Ltd ATFT HG First Investment Trust
121. LSM Pizza Pty Ltd ATF the Simon Carey Investment Trust and Lloyd Mitchell Family Trust
122. Tarrod Enterprises Pty Ltd
123. Fifth Generation Pty Ltd ATFT Watson Family Trust
124. A to Z Via K Pty Ltd ATF the A to Z Via K Family Trust
125. Golden Opportunities (WA) Pty Ltd ATF the A & N Nascimento Family Trust
126. Jandapizza Pty Ltd ATFT Munro Family Trust
127. A.B.A. (Amazing Beauty Australasia) Pty Ltd
128. LP & BR Dale Pty Ltd
129. Unleashed Potential Pty Ltd
130. Trew Pizzas Pty Ltd
131. Pye Pye Pty Ltd ATFT Holmes Family Trust
132. Gurm Brothers Pty Ltd ATFT Gurm Family Trust
133. M & B Management Pty Ltd
134. Surfdale Pty Ltd ATFT Narre Warren Trust
135. MTD Fun Foods Pty Ltd ATFT Wane Family Trust
136. Melton Foods Pty Ltd
137. Chilled Fresh Express Pty Ltd
138. Kat Attack Pty Ltd
139. Five Star Pizza Pty Ltd
140. Bentleigh Foods Pty Ltd
141. Less Conversation Pty Ltd ATF the Moir (Aust) Family Trust
142. Noble Park Foods Pty Ltd
143. Black Kat Enterprises Pty Ltd
144. Radley Holdings Pty Ltd
145. Preston Foods Pty Ltd
146. Tiwal Pty Ltd ATF the Walsh Family Trust
147. GR Pizza Pty Ltd
148. RS Enterprises Australia Pty Ltd
149. Seabrook Foods Pty Ltd
150. Rising Dough Pty Ltd
151. TPIM Pty Ltd
152. Puff Pizza Pty Ltd
153. Sarah Kate Investments Pty Ltd ATFT Sarah Kate Family Trust
154. A.C.N. 070 568 240 Pty Ltd ATFT S & W Whitechurch Family Trust
155. Pizzaaye Pty Ltd ATF the Woodward Family Trust
156. Millions of Dots Pty Ltd ATF the Admonos Unit Trust
1 s.248(2)(a) of the Act
2 s.248(2)(b) of the Act
3 s.248(2)(c) of the Act
4 s.249(1)(a) of the Act
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