McDonald's Australia Limited

[2015] FWC 8870

[2015] FWC 8870

FAIR WORK COMMISSION

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

(c) any combination of the above.

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 day on which 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.

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 employers that may bargain together for a proposed enterprise agreement) 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] In support of its application, the applicant filed a witness statement of Ms Hayley Baxendale, Director of Employee Relations. In her witness statement, Ms Baxendale set out the history of enterprise agreements covering the applicant and its franchisees since 2009. She confirmed that 43 companies had become new franchisees of the applicant. Annexed to her witness statement were written authorisations from each of those franchisees in support of this application. She also explained that it was the applicant’s intention to seek to vary the Agreement to:

1. add as existing parties to the Agreement the companies who had become licensees of the applicant since the Agreement was made in July 2013;
2. to include an updated consultation clause; and
3. to include a Home Delivery Driver classification with allowances and other benefits attached to that classification.

[4] Ms Baxendale stated that no person had been coerced or threatened to agree to bargain with the employers currently covered by the single interest employer authorisation. She outlined the consultation process that the applicant had engaged in with the employers currently covered by the authorisation and those proposed to be covered in the current application. She added that the Union had indicated that it does not oppose this application and supported the proposed variation to the Agreement.

[5] The application was listed for hearing on 17 December 2015, with Mr C Magee of Counsel appearing, with permission, with Ms M Hurley-Smith, Solicitor for the applicant and Mr B Govind appearing for the Union. Mr Magee clarified that out of the new franchisees, only three involved new McDonald’s restaurants; the others involved transferring enterprises. He submitted that the words ‘proposed enterprise agreement’ in s 248(1) should be read as referring to the proposed varied enterprise agreement. Until the proposed varied enterprise agreement was approved by the Commission, it remained only a proposed enterprise agreement in its terms, although he acknowledged that the enterprise agreement continued in a legal sense. He noted that the approval process that applies to an application for a variation, made pursuant to s 207 of the Act is similar to that for approval of an enterprise agreement, made pursuant to s 185 and that s 211(3) links the variation of an enterprise agreement to ss 180 and 188.

[6] Mr Magee relied on the witness statement of Ms Baxendale and submitted that the relevant franchisees had agreed to bargain together and that no person had been coerced or threatened in relation to bargaining for the proposed variation (s 249(1)(b)). Further, the Commission would be satisfied that the relevant employers were franchisees of the same franchisor and carried on similar business activities (s 249(2)). In the event that the Commission had some concerns as to the procedural aspects of this application, it could rely on its powers under s 589(3). The applicant sought that the date for the proposed single interest employer authorisation be effective from 17 December 2015. Mr Govind supported the submissions of Mr Magee and confirmed that the Union supported the making of the authorisation.

[7] Having considered the submissions of the parties and the evidence of Ms Baxendale, I am satisfied that all of the statutory requirements governing this application have been met. I accept the submission that the words ‘proposed agreement’ should be read to refer to the proposed varied enterprise agreement identified by the parties. Specifically, I am satisfied that:

a) the application is competently before the Commission;
b) the relevant employers, as franchisees of the applicant, have agreed to bargain together for a new agreement;
c) all of the franchisees are carrying on the same business activities;
d) there has been no coercion or threat of coercion on the franchisees to bargain together; and
e) the person authorised by the employers to make applications under the Act is the applicant.

[8] An order giving effect to the grant of the single interest employer authorisation shall take effect on 17 December 2015 and will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Mr C Magee of Counsel with Ms M Hurley-Smith, Solicitor and Mr Scott Paterson for the applicant.

Mr B Govind for the Shop, Distributive and Allied Employees’ Association.

Hearing details:

2015:

Sydney

17 December.

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