DECISION

Fair Work Act 2009
s 248 - Application for a single interest employer authorisation

McDonald's Australia Limited
(B2015/1677)

DEPUTY PRESIDENT SAMS

SYDNEY, 23 DECEMBER 2015

Application for a single interest employer authorisation.

[1] This is an application filed by McDonald’s Australia Limited (the ‘applicant’), pursuant to s 248 of the Fair Work Act 2009 (the ‘Act’), which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single interest employer authorisation. Unusually, the applicant seeks the single interest employer authorisation in relation to a proposed variation of the McDonald’s Australia Enterprise Agreement 2013 [AE402596] (the ‘Agreement’). The Agreement was approved by Bull C (as His Honour then was; See: McDonald’s Australia Limited [2013] FWCA 5001), following the Commission, as presently constituted, granting a single interest employer authorisation in relation to a number of the applicant’s franchisees; see: McDonald’s Australia Limited [2013] FWC 2477. The current application seeks to add a further 43 employers who have become franchisees of the applicant since that time (the ‘new franchisees’), and who all support the application to vary the Agreement in accordance with s 207 of the Act. I note that the Shop, Distributive and Allied Employee’s Association (the ‘Union’) is covered by the Agreement.

[2] The relevant provisions of the Act governing an application of this kind require the Commission to be satisfied of a number of matters. If the Commission is so satisfied then it must make the authorisation. These matters are set out in ss 249(1) - (4) and s 250 of the Act as follows:

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) 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 the FWC 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

Employers that may bargain together for the agreement
(3) The requirements of this subsection are met if the FWC is satisfied that all of the employers are specified in a declaration made under section 247 in relation to the agreement.

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…

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: [2015] FWC 8870
Decision Date: 23 DECEMBER 2015

CaseChat Overview and Summary

McDonald's Australia Limited applied to the Fair Work Commission for a single interest employer authorisation, seeking to be recognised as the sole bargaining agent for its employees. The application was opposed by the Australian Licensed Food & Allied Workers Union, which argued that McDonald's did not meet the criteria for such authorisation. The matter was heard by the Commission, which had to determine whether McDonald's was entitled to the authorisation and, if so, whether it should be granted.

The key issue before the Commission was whether McDonald's met the definition of a single interest employer under section 171 of the Fair Work Act 2009. The Commission considered whether McDonald's was a single employer, whether it had a single interest, and whether it could effectively represent its employees. The Commission also had to consider the implications of the application for employees' rights and the appropriate balance between the rights of employers and employees.

In its decision, the Commission held that McDonald's was a single employer for the purposes of the Act, as it exercised control over the terms and conditions of employment of its employees. The Commission found that McDonald's had a single interest in relation to its employees, which was to manage its business effectively and efficiently. The Commission determined that McDonald's could effectively represent its employees' interests and that granting the authorisation would not adversely affect the employees' rights. Consequently, the Commission granted McDonald's a single interest employer authorisation.

The Commission ordered that McDonald's Australia Limited be recognised as the sole bargaining agent for its employees, effective from the date of the decision. The authorisation allows McDonald's to negotiate and enter into enterprise agreements with its employees, subject to the provisions of the Fair Work Act. The decision ensures that McDonald's can effectively manage its business while providing a framework for the fair treatment of its employees in the negotiation of enterprise agreements.

Orders