HLGM Financial Services Pty Ltd and others

[2019] FWC 7722

[2019] FWC 7722

FAIR WORK COMMISSION

DECISION

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

HLGM Financial Services Pty Ltd and others
(B2019/1262)

DEPUTY PRESIDENT COLMAN MELBOURNE, 15 NOVEMBER 2019

Single interest authorisation

[1] On 31 October 2019 an application was made under s 248 of the Fair Work Act 2009 (Act) by HLGM Financial Services Pty Ltd, HLGM Financial Services (Bayswater) Pty Ltd and HLGM Financial Services (Boronia) Pty Ltd, seeking a single interest employer authorisation.

[2] Each company is currently bound by an enterprise agreement covering its own employees. The three enterprise agreements are in substantially the same terms. Each agreement has passed its nominal expiry date. The application states that the three companies have integrated operations, a common interest and purpose, and that each of the three companies has a franchise agreement with the Bendigo and Adelaide Bank. The applicants now wish to bargain together for a single new enterprise agreement to be called the ‘HLGM Group Enterprise Agreement 2019’.

[3] The application states that the applicants ‘believe’ that they are related bodies corporate for the purposes of s 50 of the Corporations Act 2001. If the companies are indeed related bodies corporate, they are already single interest employers, and there is no need for them to apply for a single interest authorisation. Section 172(2) of the Act states that an employer, or two or more employers that are ‘single interest employers’, may make an enterprise agreement with the employees who are employed at the time the agreement is made and who will be covered by the agreement. Section 172(5)(b) states that two or more employers are ‘single interest employers’ if they are ‘related bodies corporate’, which is defined in s 12 as having the same meaning as in the Corporations Act 2001.

[4] I drew these provisions to the attention of the applicants, however they confirmed that they wish to press their application and have it determined by the Commission. It appears that the applicants may apprehend some doubt as to whether in fact they are related bodies corporate and able to make a single enterprise agreement together without a single interest authorisation.

[5] Section 249(1) of the Act states that the Commission must make a single interest authorisation in relation to a proposed agreement if the requirements set out in that section are met. Those requirements are that an application for an authorisation have been made; that the Commission be satisfied that the employers covered by the agreement have agreed to bargain together and that no person coerced or threated to coerce them to do so; and that the requirements of either s 249(2) or 249(3) be satisfied. Relevantly, s 249(2)(a) states the requirements of that section are met if the Commission is satisfied that the relevant employers ‘carry on similar business activities under the same franchise and are franchisees of the same franchisor’.

[6] I note that the Commission has no discretion as to whether to issue an authorisation under s 249, and the section does not require the Commission to be satisfied that the relevant employers are not already single interest employers.

[7] In this case, the various requirements for the making of a single interest authorisation are met. The application complies with s 248. It identifies the three applicant employers that will be covered by the proposed agreement (s 248(2)(a)). It specifies the employees who will be covered by the agreement, namely those who perform work that is equivalent to levels 3, 4 and 5 of the Banking, Finance and Insurance Award 2010 (Award)(s 248(2)(b)). And the applicants have nominated Natalie Goold, franchise manager of Bendigo and Adelaide Bank, to make applications under the Act (s 248(2)(c)).

[8] The other requirements of s 249 are also made out. I am satisfied that the three employer applicants have agreed to bargain together, and that no person coerced or threatened to coerce any of them to agree to bargain together (ss 249(1)(a) and (b)). I am also satisfied that the three employers carry on similar business activities under the same franchise (Bendigo and Adelaide Bank) and are franchisees of the same franchisor (s 249(2)(a)).

[9] As I am satisfied of the matters in s 249, I am required to issue a single interest employer authorisation. It will specify that the employers who will be covered by the proposed agreement are the three applicant companies referred to above, and that the employees who will be covered are those employed by any of the three companies who perform work that is equivalent to levels 3, 4 and 5 of the Award. In accordance with s 249(4)(a), the authorisation will come into force on the day it is made.

[10] The single interest employer authorisation is issued separately to this decision [PR714176].

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR714174>