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

[2024] FWC 2275

[2024] FWC 2275

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.248 - Application for a single interest employer authorisation

Hungry Jack’s Pty Ltd T/A Hungry Jack’s

(B2024/989)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 9 SEPTEMBER 2024

Application for a single interest employer authorisation – franchise arrangements in place for all relevant employers – authorisation issued.

1. This matter concerns an application by Hungry Jack’s Pty Ltd T/A Hungry Jack’s on behalf of 14 employers, including itself, namely:

·  Hungry Jack's Pty Ltd (ABN 25 008 747 073);

·  Jenermo Vice Pty Limited (ABN 26 652 003 211);

·  Jenermo Pty Limited (ABN 85 652 003 588);

·  Jenermo Viper Pty Limited (ABN 70 652 008 770);

·  DKCI Groups Pty Limited (ABN 85 669 024 588);

·  Hungry Jack's St Marys Pty Limited (ABN 83 132 717 876);

·  Lechem House Pty Limited ATF The Mackay Trust (ABN 64 613 060 773);

·  Burger Pay Pty Limited (ABN 93 675 705 003);

·  Possingham Family Pty Limited (ABN 81 157 937 623);

·  Closecorp Foods Ballarat Pty Limited ATF Closecorp Ballarat Unit Trust (ABN 82 423 147 881); 

·  Closecorp Foods Horsham Pty Limited ATF Closecorp Horsham Unit Trust (ABN 69 766 815 757);

·  The Trustee for Rick Singh Family Trust (ABN 21 250 088 904);

·  The Trustee for Barrington Asset Management Trust (ABN 26 937 711 799); and

·  Palm Lakes Corporation Pty Limited (ABN 48 183 785 228).

1. I will refer to these employers collectively as the Applicant Employers. Each of the Applicant Employers operate Hungry Jack’s Restaurants in Queensland, New South Wales, Victoria and/or South Australia.

2. The Applicant Employers seek a single interest employer authorisation under s.248 of the Fair Work Act 2009 (Cth) (FWAct) (Authorisation). This provision is found in Division 10 of Part 2-4 of the FW Act. The Authorisation would permit the Applicant Employers to bargain together for a proposed multi-employer enterprise agreement to replace the Hungry Jacks National Enterprise Agreement 2019[1] (2019 Agreement), which nominally expired on 9 April 2024.

1. The employees to be covered by the proposed Authorisation and enterprise agreement are the same as those specified in the 2019 Agreement and are, in effect those engaged as:

·  Crew Members, Crew Member – Team Leads, Shift Supervisors, Assistant Managers and Restaurant Managers.

1. I understand that these classifications are as defined in clause 17 of the 2019 Agreement.

1. The Australian Workers’ Union – Qld Branch (AWU) and the Shop, Distributive and Allied Employees Association (SDA) are employee organisations who represent employees who would be covered by the proposed Authorisation and enterprise agreement and support the application. The Retail and Fast Food Workers Union (RAFFWU) is also a bargaining representative for some employees who would be covered and did not oppose the Authorisation being issued.

1. A hearing was conducted on 3 and 6 September 2024 by MS Teams Video. I have granted the application and now issue the Authorisation as sought. My reasons for so doing are outlined below.

1. The objects of Part 2-4 of the FW Act are set out in s.171 as follows:

“171 Objects of this Part

The objects of this Part are:

(a)  to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and

(b)  to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:

(i)      makingbargaining orders; and

(ii)  dealing with disputes where the bargaining representatives request assistance; and

(iii)  ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay.”

1. The Act has previously provided for single interest authorisations;[2] however, the basis and operation of the authorisations was significantly amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (SJBP Act).

1. Sections 248 to 250 of the FW Act now provides:

“248 Single interest employer authorisations

(1)  The following may apply to the FWC for an authorisation (a single interest employer authorisation) under section 249 in relation to a proposed enterprise agreement that will cover two or more employers:

(a)     those employers;

(b) a bargaining representative of an employee who will be covered by the agreement.

(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.

249 When the FWC must make a single interest employer authorisation

Single interest employer authorisation

(1) The FWC 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)     the FWC is satisfied that:

(i) at least some of the employees that will be covered by the agreement are represented by an employee organisation; and

(ii) the employers and the bargaining representatives of the employees of those employers have had the opportunity to express to the FWC their views (if any) on the authorisation; and

(iii) if the application was made by 2 or more employers under paragraph 248(1)(a)—the requirements of subsection (1A) are met; and

(iv)  if the application was made by a bargaining representative under paragraph 248(1)(b)—each employer either has consented to the application or is covered by subsection (1B); and

(v) the requirements of either subsection (2) or (3) (which deal with franchisees and common interest employers) are met; and

(vi) if the requirements of subsection (3) are met—the operations and business activities of each of those employers are reasonably comparable with those of the other employers that will be covered by the agreement.

(1AA)  If:

(a) the application for the authorisation was made by a bargaining representative under paragraph 248(1)(b); and

(b)  an employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;

it is presumed that the operations and business activities of the employer are reasonably comparable with those of the other employers that will be covered by the agreement, unless the contrary is proved.

Additional requirements for application by employers

(1A)     The requirements of this subsection are met if:

(a)  the employers that will be covered by the agreement have agreed to bargain together; and

(b)  no person coerced, or threatened to coerce, any of the employers to agree to bargain together.

Additional requirements for application by bargaining representative

(1B)     An employer is covered by this subsection if:

(a)  the employer employed at least 20 employees at the time that the application for the authorisation was made; and

(b)  the employer has not made an application for a single interest employer authorisation that has not yet been decided in relation to the employees that will be covered by the agreement; and

(c)  the employer is not named in a single interest employer authorisation or supported bargaining authorisation in relation to the employees that will be covered by the agreement; and

(d)  a majority of the employees who are employed by the employer at a time determined by the FWC and who will be covered by the agreement want to bargain for the agreement; and

(e)  subsection (1D) does not apply to the employer.

(1C) For the purposes of paragraph (1B)(d), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.

(1D)     This subsection applies to an employer if:

(a)  the employer and the employees of the employer that will be covered by the agreement are covered by an enterprise agreement that has not passed its nominal expiry date at the time that the FWC will make the authorisation; or

(b)  the employer and an employee organisation that is entitled to represent the industrial interests of one or more of the employees of the employer that will be covered by the agreement have agreed in writing to bargain for a proposed single‑enterprise agreement that would cover the employer and those employees or substantially the same group of those employees.

Franchisees

(2)  The requirements of this subsection are met if 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.

Common interest employers

(3)      The requirements of this subsection are met if:

(a)     the employers have clearly identifiable common interests; and

(b)     it is not contrary to the public interest to make the authorisation.

(3A)  For the purposes of paragraph (3)(a), matters that may be relevant to determining whether the employers have a common interest include the following:

(a)     geographical location;

(b)     regulatory regime;

(c)  the nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises.

(3AB)  If:

(a)  the application for the authorisation was made by a bargaining representative under paragraph 248(1)(b); and

(b)  an employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;

it is presumed that the requirements of subsection (3) are met in relation to that employer, unless the contrary is proved.

Calculating number of employees

(3AC) For the purposes of calculating the number of employees referred to in paragraph (1AA)(b), (1B)(a) or (3AB)(b):

(a)     employee has its ordinary meaning; and

(b)  subject to paragraph (c), all employees employed by the employer at the time that the application for the authorisation was made are to be counted; and

(c)  a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer; and

(d)     associated entities of the employer are taken to be one entity.

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) at the same time as 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.

249A Restriction on making single interest employer authorisations

The FWC must not make a single interest employer authorisation in relation to a proposed enterprise agreement if the agreement would cover employees in relation to general building and construction work.

250 What a single interest employer authorisation must specify

What authorisation must specify

(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.

Authorisation may relate to only some of employers or employees

(2)  If the FWC is satisfied of the matters specified in subsection 249(2) or (3) (which deal with franchisees and common interest employers) in relation to only some of the employers that will be covered by the agreement, the FWC may make a single interest employer authorisation specifying those employers and their employees only.

(3)  The FWC may make a single interest employer authorisation that does not specify one or more employers specified in an application for the authorisation, and the employees (the relevant employees) of those employers specified in that application, if the FWC is satisfied that:

(a) the employers are bargaining in good faith for a proposed enterprise agreement that will cover the employers and the relevant employees, or substantially the same group of the relevant employees; and

(b) the employers and the relevant employees have a history of effectively bargaining in relation to one or more enterprise agreements that have covered the employers and the relevant employees, or substantially the same group of the relevant employees; and

(c) on the day that the FWC will make the authorisation, less than 9 months have passed since the most recent nominal expiry date of an agreement referred to in paragraph (b).

(4) If the effect of subsection (3) is that no employers would be specified in the authorisation, the FWC may refuse the application for the authorisation.”

1. The Explanatory Memorandum to the SJBP Act stated the purpose of the amendments leading to these revised provisions in the following terms:

“1006. Part 21 of Schedule 1 to the Bill would amend Division 10 of Part 2-4 of the FW Act to remove unnecessary limits on access to single interest employer authorisations and simplify the process for obtaining them, and facilitating bargaining by:

·removing the requirement for two or more employers with common interests who are not franchisees to obtain a Ministerial declaration before applying a single interest employer authorisation;

·providing for employee bargaining representatives to apply for a single interest employer authorisation to cover two or more employers, subject to majority support of the relevant employees;

·permitting employers and employee bargaining representatives to apply to vary a single interest employer authorisation to add or remove the name of an employer from the authorisation, subject to meeting specified requirements; and

·inserting new Subdivision AD—Variation of single interest employer agreement to add employer and employees, into Division 7 of Part 2-4 of the FW Act to permit employers and employee organisations to apply to the FWC for approval of a variation to extend coverage of an existing single interest employer agreement to a new employer and its employees, subject to meeting specified requirements.”[3]

… …

“1066. New subsection 249(1) would delineate the requirements of which the FWC must be satisfied before making a single interest employer authorisation depending on whether the application for the authorisation was made by the employer and its employees, or an employee organisation. It would also clarify the requirements of which the FWC must be satisfied depending on whether the single interest employer authorisation is to operate in respect of two or more common interest employers or franchisees. The term ‘common interest employers’ would be introduced by these amendments and used to identify those employers who may be included in a single interest employer authorisation but who are not franchisees.”[4]

1. I observe that subsequent legislation[5] has provided that franchisees may make a single-enterprise agreement, whilst retaining the capacity to make an application of this kind.[6]

1. The requirements for making an authorisation under s.249 of the FW Act vary, depending upon the nature of the applicant and the circumstances of the employers involved. In this case, the applicants are the employers who seek to bargain together. This means that the “additional” requirements of s.249(1A) apply and the terms of s.249(1B) and consequential provisions do not.

1. As will become clear, this application has been dealt with on the basis of the ‘franchise’ provisions of s.249(2) of the FW Act. I consider that the proper interpretation is that this provision and s.249(3) are alternatives. That is, if s.249(2) is met, it is not necessary that s.249(3) (‘common interests’ and ‘not contrary to the public interest’ requirements) be considered. Further, the reasonable comparability of operations and business activities’ test under s.249(1)(b)(vi) does not then arise because this is contingent upon a finding under s.249(3). This approach is consistent with the terms of the legislation itself and the extracts from the relevant Explanatory Memorandum set out earlier. I observe that in this case I would, in any event, have found that the requirements of s.249(3) and consequential provisions were satisfied.

1. In deciding to make the Authorisation, I am satisfied that all the relevant requirements under ss.249 and 249A of the FW Act have been met. I briefly deal with each in turn.

Was a valid application made?

1. An application was made by the Applicant Employers and they would be covered by the (proposed) agreement. The application specifies the required matters, including the person nominated by the employers to make applications under this Act if the Authorisation is made.[7] I am satisfied that the requirements under ss.248 and 249(b)(i) of the FW Act have been met.

Are at least some of the employees who will be covered by the Agreement represented by an employee organisation?

1. I am satisfied that at least some, and potentially many, of the employees that will be covered by the agreement are represented by an employee organisation.[8] Each of the Applicant Employers employ one or more persons who are a member of, and are represented by, the AWU (in North Queensland) or the SDA.[9] Each is an employee organisation as defined in the FW Act.[10]

Have the Parties had the opportunity to express their views?

1. I am satisfied that the Applicant Employers and the SDA, AWU and RAFFWU as the bargaining representatives of the employees have had the opportunity to express their views on the proposed Authorisation.

1. The relevant parties have provided submissions confirming their views, and all have supported, or not opposed, the Authorisation being made.

Have the Applicant Employers agreed to bargain together?

1. I am satisfied that the employers that will be covered by the agreement have agreed to bargain together, and that no person coerced, or threatened to coerce, any of the employers to so agree.[11]

Have the requirements of either ss.249(2) or 249(3) been met?

1. It is s.249(2) of the FW Act that applies here. That is, the Applicant Employers must carry on similar business activities under the same franchise and are:

·franchisees of the same franchisor; or

·related bodies corporate of the same franchisor; or

·any combination of the above.

1. I am satisfied that the Applicant Employers carry on similar business activities under the same franchise. Amongst other matters, the following factors identified in the application and confirmed by the evidence[12] before the Commission support that finding:

·  The Employers carry on very similar business activities and operations under the same franchise (all known and branded as Hungry Jack's). Hungry Jack's Pty Ltd and its franchisees have a common interest, being the successful operation of Hungry Jack's' restaurants.

·   All Hungry Jack's restaurants, whether operated by Hungry Jack's Pty Ltd or a franchisee, operate in a virtually identical way and the work in the Hungry Jack's restaurants is virtually identical across the brand.

·  Hungry Jack's franchisees operate under franchise agreements which require a very high level of standardisation and co-operation. Most features of the business are standardised, including operating systems and processes, a recognised design, decor and colour scheme for restaurant buildings, kitchen and dining room equipment and layout, service format, quality and uniformity of products and services offered, and procedures for inventory and management control.

·  Where possible, the Employers also use standardised employment policies and processes.

·  Profit is effectively shared as Hungry Jack's Australia Pty Ltd obtains a proportion of revenue from franchisees.

1. Accordingly, I am satisfied that the requirements under s.249(2) of the FW Act have also been met.

Other matters

1. The proposed Authorisation specifies each of the matters required by s.250(1) of the FW Act.

1. The findings made apply to all of the Applicant Employers and for the purposes of s.250(2) of the FW Act I am satisfied that each should be specified in the Authorisation.

1. The circumstances contemplated in s.249(1D), and s.250(3) and (4) do not apply.

Conclusions

1. Given my satisfaction with all of the relevant requirements, I am obliged to issue the Authorisation under s.249(1) of the FW Act.

1. The Authorisation has been issued separately in PR778634.

1. Pursuant to s.249(4) of the FW Act, the Authorisation comes into operation on the day it is made (9 September 2024) and will cease to have effect on the earlier of the day on which the proposed enterprise agreement is made or 12 months after the date of the Authorisation, subject to any extension pursuant to s.252 of the FW Act.

1. The Commission stands ready to assist the parties with the bargaining for the proposed multi-employer enterprise agreement should that be sought, such as under a s.240 application or a joint request to conduct a collaborative approaches process to utilise interest-based bargaining.

DEPUTY PRESIDENT

Appearances:

T McDonald, with permission, of McCabe Lawyers with J McKie for the Applicant Employers.

S Burnley for the Shop, Distributive and Allied Employees Association.

G Taylor for the Australian Workers’ Union, Queensland Branch.

J Cullinan for the Retail and Fast Food Workers Union.

Hearing details:

2024
September 3 and 6
By MS Teams Video.

[1] AE507725.

[2] Sections 247 – 252 of the FW Act as it stood prior to the operation of the SJBP Act.

[3] Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, Revised Explanatory Memorandum at [1006].

[4] Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, Revised Explanatory Memorandum at [1066].

[5] Fair Work Legislation Amendment (Closing Loopholes) Act 2023.

[6] Ibid - Part 3 of Schedule 1.

[7] Section 248(2)(c) of the FW Act – confirmed to be the Chief People Officer of Hungry Jack's Pty Ltd.

[8] Section 249(1)(b)(i) of the FW Act.

[9] Paragraph 15 of the statement of Ms Jennifer McKie, Chief People Officer – exhibit A1.

[10] Section 12 of the FW Act and Fair Work (Registered Organisations) Act 2009 (Cth).

[11] Section 249(1A) of the FW Act.

[12] The statement of Ms McKie.

Printed by authority of the Commonwealth Government Printer

<PR778632>