Hungry Jack's Australia Pty Ltd T/A Hungry Jack's

[2020] FWC 1314

[2020] FWC 1314

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Hungry Jack's Australia Pty Ltd T/A Hungry Jack's
(AG2019/1291)

DEPUTY PRESIDENT BOYCE SYDNEY, 17 MARCH 2020

Application for approval of the Hungry Jack's National Enterprise Agreement 2019; Applicant not actual employer of relevant employees; another entity actual employer of relevant employees; issue not brought to the Commission’s attention at hearing; undertakings made by actual employer, not by Applicant; failure to amend F16, F17 and F18 Forms to reflect name of actual employer; Agreement approved on 16 December 2019; Commission functus officio in relation to new issues arising; proceedings under appeal; implications of Applicant not being actual employer of relevant employees to be considered and determined by Full Bench.

[1] On 16 December 2019, I issued a decision approving the Hungry Jack’s National Enterprise Agreement 2019 (Agreement). 1 In that decision, I stated that further reasons for that decision will be published in due course.2 The application for approval was made by Hungry Jack’s Australia Pty Ltd T/A Hungry Jacks (ACN 065 643 343; ABN 83 065 643 343) (Applicant).

[2] During the preparation of my further reasons, I became aware that the actual “national system employer” of the relevant employees covered by the Agreement is “Hungry Jack’s Pty Ltd” T/A Hungry Jack’s (ACN 008 747 073, ABN 25 008 747 073) (Actual Employer). However, the Actual Employer is not the named Applicant in these proceedings. This issue arises despite clause 4.1 of the Agreement (which is titled “Coverage”) being expressed to cover the Applicant. I understand the Applicant to be not only a different and distinct legal entity to the Actual Employer, but also the parent company to the Actual Employer.

[3] The issue of the Applicant not being the actual employer entity of relevant employees was not raised before me (by anyone) in oral argument during the two face-to-face hearings conducted by me in this matter. More specifically, it was not a contention raised by the Retail and Fast Food Workers’ Union (RAFFWU) who opposed the approval of the Agreement. Further, the Applicant did not appear to consider this issue to be a matter of significance such that the Applicant sought to bring the matter to my attention during the hearings. I only become aware of the subtle difference between the name of the Applicant and the name of the Actual Employer by reference to a two-line paragraph at the end of one of the Applicant’s various written submissions titled “Clarification” (as part of preparing my further reasons post the publication of my decision). It has not been made clear to me what knowledge, if any, the Shop, Distributive and Allied Employees Association (SDA), and the Australian Workers’ Union (AWU), who supported the approval of the Agreement, had of this issue at the time of the hearings, but the issue of the Applicant not being the Actual Employer of relevant employees to be covered by the Agreement was never raised with me by either of these unions (in writing, or orally).

[4] I note that all of the documents filed by the Applicant (i.e. the Form F16 and Form F17 Statutory Declaration Forms) in this matter have been filed in the name of the Applicant (not the Actual Employer). Further, all of the documents filed by the relevant employee organisations (i.e. the Form F18 Statutory Declaration Forms) in this matter identify the Applicant as the employer. No party, at any time, sought to replace or amend any of those documents. Nor did the Applicant seek to rely upon any evidence explaining to the Commission how any purported error, mistake, or mix-up between the Applicant and the Actual Employer on these documents, and/or on the face of the Agreement, occurred.

[5] Given that the name of the employer is incorrect, it appears to me that all of these documents, in their current form, are deficient (i.e. invalid) for the purposes of the application for approval in this matter. Significantly, the Form F17 (being the “Employer’s statutory declaration in support of an application for approval of an enterprise agreement”), has not been signed by a representative of the Actual Employer. Instead, the Form F17 has been signed by, or on behalf of, a representative of the Applicant. The Agreement itself has also been signed by a representative of the Applicant (and not the Actual Employer). 3

[6] I infer that given the Applicant failed to clarify that it was not the Actual Employer, by promptly seeking to amend its F17 Form, the Commission’s Enterprise Agreements Team (which triages most applications for approval of a proposed enterprise agreement before consulting a Commission member on any potential issues in the approval of that proposed enterprise agreement) simply could not identify, or more likely was completing unaware, that there was any issue in this regard.

[7] I further note that the Applicant has provided undertakings in this matter, not in its name, but in the name of the Actual Employer. In this regard, knowing what I know now, I do not consider that such undertakings are valid or binding as they were not made by the Applicant, but by the Actual Employer. In making my decision to approve the Agreement, I sought undertakings from the purported Applicant employer, not the Actual Employer (i.e. the latter has never made an appearance in these proceedings). Again, the Applicant did not specifically bring to my attention the fact that the undertakings provided were not in its name. Further, Mr Tim McDonald (Solicitor, Morey & Agnew Lawyers, appearing on behalf of the Applicant) did not bring to my attention at any time that he was not only representing the Applicant in these proceedings, but also the Actual Employer.

[8] Clause 4.1 of the Agreement reads:

“the Agreement shall apply to Hungry Jack’s Australia Pty Ltd, as well as its subsidiaries, licensees and their associated companies operating fast food outlets and all employees of Hungry Jack’s as defined”.

(my emphasis)

[9] Clause 3.1 of the Agreement defines an “employee” as a “national system employee”. It also defines “employer” as a “national system employer”.

[10] On the basis of the submissions of the Applicant, and undertaking three (of the undertakings published with the approval of the Agreement), I accepted that the Agreement would only cover and apply to the relevant employees who were given the opportunity to vote to approve the Agreement (being those employees listed in the classifications found at clause 17 of the Agreement).

[11] I also accepted that the Agreement could only ever cover “Hungry Jack’s Australia Pty Ltd” and not “its subsidiaries, licensees and their associated companies operating fast food outlets”. I do not consider there to be any basis under the Act, or otherwise, for an enterprise agreement to cover current and/or future unnamed and unidentified “subsidiaries, licensees and their associated companies operating fast food outlets” of an Applicant employer. This is especially so when the Applicant is not even an “employer” (let alone a “national system employer”). To be clear, I simply do not accept that s.172 of the Act, in relation to two or more employers being “single interest employers”, can be said to operate in the circumstances of this case where the Applicant is not the employer of any of the relevant employees who bargained for, or made, the Agreement. Indeed, given my understanding that the Applicant is not even a national system employer, it is unclear to me as to the basis upon which it might ever be asserted that the Applicant might be capable of becoming a one of two or more single interest employers. As for the Actual Employer, it is neither named as an employer nor an applicant, in the F17 Form filed in these proceedings.

[12] In my view, these issues are not merely matters of technicality or ambiguity that can be resolved or cured by way of variation under, for example, s.217 of the Act. The purported employer named in the Agreement is “Hungry Jack’s Australia Pty Ltd”. This may be an error, but it is not a technicality or ambiguity. Indeed, it can hardly be a technicality that the purported employer named in the Agreement is not only not the employer of relevant employees, but not an employer at all. In my view, if the Applicant genuinely considered this to be a matter of technicality or ambiguity, the Applicant would have either never lodged the originating application in its own name, or immediately sought to amend its originating application (and filed relevant and direct evidence as to how long the Applicant was aware of this issue, why the Applicant chose to file the originating application that it did, and why the Applicant chose to conduct itself in these proceedings in respect of this issue in the manner that it did).

[13] On 4 March 2020, I advised the parties (by way of email from my Chambers) that I had recently become aware that the actual employer of relevant employees (who are covered by the Agreement) is Hungry Jack’s Pty Ltd (and not Hungry Jack’s Australia Pty Ltd).

[14] On 9 March 2020, I held a hearing by telephone so that the parties could make submissions on this issue. Appearing at this hearing were:

a) Mr McDonald on behalf of the Applicant;

b) Mr Warren Friend, of Queen’s Counsel, on behalf of the SDA;

c) Mr Jack Harding on behalf of the AWU; and

d) Mr Joshua Cullinan on behalf of RAFFWU.

[15] Having heard from the parties during that hearing, prima face, it now appears to me that there was never a proposed enterprise agreement capable of approval by the Commission, and that the application for approval of the Agreement ought to have been dismissed.  Indeed, it appears to me that the current application ought to have never been made (i.e. lodged with the Commission for approval in the first place). I note that this is not a matter that appears capable of being cured by way of undertaking or correction. 4  Further, this is not a matter where a single interest employer authorisation has been previously obtained, and thus applied at the time the Agreement was “made” (it is noted that such a single interest employer authorisation cannot be obtained so that it has the effect of retrospectively, for example, curing a defect such as the one in this matter). This is especially so where the Applicant is not an employer.

[16] During the hearing, the parties jointly submitted that I am now functus officio in terms of dealing with the issues that flow from the Applicant not being the actual employer. I concur with the parties in this regard. Given that these proceedings are now subject to appeal, the issues I have identified in this Statement are now a matter for the Full Bench to consider and determine. I note that RAFFWU advised me (at the hearing on 9 March 2020) that it had already amended its Notice of Appeal to include this issue as a ground of appeal.

[17] I make one final observation in this matter. In my view, the fact that the Applicant is not the actual employer of relevant employees (or an employer at all) is an issue that ought to have been squarely brought to my attention by the Applicant orally at the commencement of the hearing. This issue is not one that should have been hidden away at the back of a set of written submissions under a heading “Clarification”. The approach totally downplays the significance of the issue, and is therefore not an approach that has anything to commend it. In my view, it is very unfortunate that this issue was known to the Applicant, but was not raised in a totally upfront manner with the Commission.

[18] This issue is not simply one that required “clarification”. Rather, this is a significant threshold issue that goes squarely to the jurisdiction of the Commission to hear and determine the application made. Even more significantly, an enterprise agreement is an instrument that employees may seek to rely upon for statutory enforcement purposes of their rights and entitlements. It therefore follows that this issue is the kind that gives rise to an obligation upon an Applicant to, at the very least, immediately amend its originating application to properly reflect the name of the actual employer of relevant employees (and the true applicant in these proceedings).

[19] The Form F17 in this matter is clearly deficient. Allowing proceedings to have continued on the basis of this deficiency (and absent any application to amend) has born a situation where the Applicant has failed to adequately present arguments to this Commission that were sufficient to enable the Commission to determine a significant legal issue squarely arising in the proceedings. The Form F17, unamended, ought to have never been relied upon by the Applicant in these proceedings. The approach by which the Applicant has proceeded in this matter has been wholly unsatisfactory and has, regrettably, resulted in the Commission’s time and resources having been unnecessarily wasted.

DEPUTY PRESIDENT

Appearances:

Mr Timothy McDonald (Solicitor, Morey & Agnew) appeared on behalf of Hungry Jack's Australia Pty Ltd.

Mr Warren Friend of Queen’s Counsel appeared on behalf of the SDA, instructed by Mr Dominic Macken (Solicitor, AJ Macken & Co) and Ms Sue-Anne Burnley of the SDA).

Mr Jack Harding appeared on behalf of the AWU.

Mr Joshua Cullinan appeared on behalf of the RAFFWU.

Hearing details:

A hearing was conducted on 9 March 2020 by telephone.

Printed by authority of the Commonwealth Government Printer

<PR717409>

 1   Re: Hungry Jack’s Australia Pty Ltd [2019] FWCA 8492.

 2 Ibid at [7].

 3   Even if it might be said that Ms Jenny McKie is an authorised representative of both Hungry Jack’s Australia Pty Ltd, and Hungry Jack’s Pty Ltd, that is not to the point. The Agreement names Hungry Jack’s Australia Pty Ltd as the employer. Ms McKie could therefore, for the purposes of the Agreement, only ever be a relevant authorised representative signing the Agreement on behalf Hungry Jack’s Australia Pty Ltd. Indeed, Hungry Jack’s Pty Ltd is not mentioned in the Agreement, nor has it formally appeared in these proceedings. The fact that Ms McKie may be a representative for any number of legal entities, including Hungry Jack’s Pty Ltd, is therefore irrelevant.

 4   c.f. Fair Work Act 2009 s.586.