McDonald's Australia Limited

[2016] FWCA 1209

[2016] FWCA 1209

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 210 - Application for approval of a variation of an enterprise agreement

McDonald's Australia Limited
(AG2016/2254)

MCDONALD'S AUSTRALIA ENTERPRISE AGREEMENT 2013

Fast food industry
DEPUTY PRESIDENT SAMS	SYDNEY, 25 FEBRUARY 2016

Application for variation of the McDonald's Australia Enterprise Agreement 2013 – additional franchisees – model consultation clause – new classification of ‘Home Delivery Driver’ – variation approved.

[1] This is an application filed by McDonald’s Australia Limited (the ‘applicant’), pursuant to s 210 of the Fair Work Act 2009 (the ‘Act’), for approval of a variation to a single enterprise agreement known as the McDonald’s Australia Enterprise Agreement 2013 [AE402596] (the ‘Agreement’). The Agreement was approved by the Commission on 24 July 2013 (See: McDonald’s Australia Limited [2013] FWCA 5001) following the issuing of a single interest employer authorisation on 23 April 2013 [PR535937]. The Agreement covers almost 100,000 employees engaged at fast food restaurants operated by the applicant and a number of its franchisees across Australia. This application follows the grant of a further single interest employer authorisation to cover a number of the applicant’s franchisees (see: McDonald’s Australia Ltd [2015] FWC 8870). Relevantly, the Shop, Distributive and Allied Employees Association (the ‘Union’) is covered by the Agreement.

[2] In the Employer’s Declaration in support of the application (Form F23A), Mr S Paterson, National Employee Relations Manager, advised that on 9 January 2016 the employees were provided with a copy of the proposed variation to the Agreement through the applicant’s intranet, which is used by employees to monitor their rosters, together with an explanatory document, a copy of the National Employment Standards and the Fast Food Industry Award 2010 [MA000003]. The applicant also conducted seven separate presentations between 12 and 16 January 2016. On 12 January 2016, the employees were advised of the vote, to be conducted between 20 and 24 January 2016. In an electronic ballot, 8,233 of the 9,202 employees who cast a valid vote agreed to approve the proposed variation (ss 207, 208 and 209). I am satisfied that the employees have genuinely agreed to the variations (s 211(3)(c), 188). The application was lodged on 5 February 2016, thereby satisfying s 210(3)(a) of the Act.

[3] Shortly stated, the effect of the variations is to add a number of the applicant’s franchisees as parties to the Agreement, to adopt the model Consultation clause and to provide for new classifications of Home Delivery Driver. It was said that the variations contain no less beneficial terms than those under the relevant Award.

[4] At a hearing for the approval of the application, Mr C Magee of Counsel appeared with Ms M Hurley-Smith, Solicitor and Mr S Paterson for the applicant and Mr M Galbraith appeared for the Union. Mr Magee outlined the pre-approval process for the variation and submitted that all of the relevant statutory requirements for approval had been met and it should be approved. He explained that the new classification provided for a fixed allowance for every delivery where a delivery round trip was less than 5km. This was more beneficial than provided for in the Award. However, where a delivery round trip exceeds 7km, an employee will receive 41c per kilometre for each kilometre over 7km. Drivers who use their own vehicles will also be paid for vehicle insurance and provided with a first aid kit. Mr Galbraith supported the submissions of Mr Magee. The Union had filed a Declaration (Form F23B) supporting the approval of the variation.

[5] Section 211(1) of the Act provides that the Commission must approve a variation made pursuant to s 210, if:

‘(a) the FWC is satisfied that had an application been made under section 185 for the approval of the agreement of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186; and

(b) the FWC is satisfied that the agreement as proposed to be varied would not specify a date as its nominal expiry date which is more than 4 years after the day on which the FWC approved the agreement;

unless the FWC is satisfied that there are serious public interest grounds for not approving the variation.’

[6] Having reviewed the pre-approval process documentation, the submissions of the parties and the proposed variations, I am satisfied that all of the requirements of the Act, in particular, ss 207, 208, 209, 210 and 211 of the Act, in so far as relevant to this application, have been met. Specifically, I am satisfied that the Commission would have been required to approve the Agreement, as varied, had an application been made to approve it in accordance with s 185 of the Act, that there are no public interest grounds for not approving the variation and that the variation does not specify a nominal expiry date of more than four years after the day on which the Commission approved the Agreement. Accordingly, I approve the proposed variations to the McDonald’s Australia Enterprise Agreement 2013. Pursuant to s 216 of the Act, the variation shall take effect on and from 24 February 2016 and remain in force until the Agreement is rescinded or replaced. A copy of the Agreement, as varied is annexed to this decision.

DEPUTY PRESIDENT

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