DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kentucky Fried Chicken Pty. Limited
(AG2019/4042)

KFC NATIONAL ENTERPRISE AGREEMENT 2020

Fast food industry
DEPUTY PRESIDENT CROSS	SYDNEY, 22 APRIL 2020

Application for approval of the KFC National Enterprise Agreement 2020.

[1] On 23 October 2019, an application (“the Application”) was made by Kentucky Fried Chicken Pty Ltd (the “Applicant” or “KFC”), for the approval of an enterprise agreement known as the KFC National Enterprise Agreement 2020 (the “Agreement”). The Agreement would cover the Applicant and 77 other named employers (the “Employers”) 1.

[2] The Shop, Distributive and Allied Employees’ Association (the “SDA”) was an employee organisation bargaining representative for the Agreement for the purposes of s.176(1)(b) of Fair Work Act 2009 (the “Act”). The Australian Workers’ Union (the “AWU”) was also an employee organisation bargaining representative for the Agreement for the purposes of s.176(1)(b) of the Act. Each of the SDA and the AWU, on 29 October 2019 and 21 November 2019 respectively, filed a Form F18 – Statutory declaration of employee organisation in relation to an application for approval of an enterprise agreement (other than a greenfields agreement).

[3] On 29 October 2019, Mr Joshua Cullinan filed a Form F18A – Statutory declaration of employee representative in relation to an application for approval of an enterprise agreement (other than a greenfields agreement). That Form F18A identified at question 2 that “The Union” was the bargaining representative. While the Form F18A did not define the term “Union”, in answer to question 3 it stated that the Retail and Fast Food Workers Union (“RAFFWU”) “…is the bargaining representative of an employee”.

Standing of RAFFWU

[4] When filing the Form F18A, RAFFWU also provided a redacted document in the form of a collection of emails titled “Instruments of Appointment – Bargaining Representative”. That document, which is annexed to this decision and marked “Annexure B”, consisted of four emails, three of which appointed RAFFWU as the bargaining representative of the persons who sent the emails. Unredacted copies of those emails were subsequently provided to the Fair Work Commission (the “Commission”) on 6 December 2019. Those unredacted emails disclosed that one employee in Butler, Western Australia, and one employee in Wagga Wagga, New South Wales (the “Two Employees”) had appointed RAFFWU as their bargaining representative.

(a) Submissions Regarding Standing

[5] By correspondence to the Commission dated 27 November 2019, the Applicant submitted that RAFFWU was apparently seeking to appear in its own right, rather than as the bargaining representative of the Two Employees. That correspondence relevantly provided as follows:

“3. RAFFWU provided to the Commission what it referred to as a “redacted bargaining representative appointment document”, which contained three emails presumably from KFC employees to RAFFWU. RAFFWU’s covering email to the Commission gave the appearance that it was making an application to appear in the proceedings in its own right possibly as the representative of anonymous employees, akin to a registered organisation. A…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWCA 2020
Decision Date: 22 APRIL 2020

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Kentucky Fried Chicken Pty. Limited and its employees, with the central dispute centering on the approval of the KFC National Enterprise Agreement 2020. The Commission was tasked with determining whether the agreement met the legal criteria for approval under the Fair Work Act 2009. The applicants sought to have the enterprise agreement registered, while the respondents, who represented some of the employees, contested the agreement on various grounds.

The primary legal issues that the Commission had to resolve included whether the agreement provided for a fair and reasonable rate of pay for employees, the extent to which the agreement facilitated meaningful consultation and participation between the parties, and if the agreement complied with the procedural requirements set out in the Fair Work Act. The respondents argued that the agreement did not adequately address the needs of all employees, particularly those in lower-paid positions, and that it failed to provide for sufficient consultation and participation.

The Fair Work Commission, after reviewing the submissions from both parties and considering the evidence presented, found that the agreement was largely fair and reasonable. The Commission noted that while there were some concerns regarding the provisions for lower-paid employees, the overall terms of the agreement were satisfactory. The Commission determined that the agreement provided for adequate consultation and participation mechanisms and was compliant with the procedural requirements of the Fair Work Act. Consequently, the Commission approved the KFC National Enterprise Agreement 2020, dismissing the objections raised by the respondents.

The final orders of the Commission included the approval of the KFC National Enterprise Agreement 2020, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission, and the terms and conditions set out within it would govern the employment of the employees covered by the agreement. The decision provided clarity on the legal criteria for the approval of enterprise agreements and reinforced the importance of fair and reasonable terms for all employees involved.

Orders