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…

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: [2016] FWCA 1209
Decision Date: 25 FEBRUARY 2016

CaseChat Overview and Summary

McDonald's Australia Limited applied to the Fair Work Commission for a variation of the McDonald's Australia Enterprise Agreement 2013, specifically addressing the inclusion of additional franchisees and a new classification of 'Home Delivery Driver'. The application also sought to amend a model consultation clause. The application was made under section 235 of the Fair Work Act 2009. The relevant unions opposed the application.

The primary legal issues were whether the proposed changes were consistent with the requirements of the Fair Work Act and whether they provided for fair and appropriate consultation processes. The Commission had to consider if the variations would facilitate the efficient operation of the business and if they adequately protected the interests of employees and franchisees. The unions argued that the changes would negatively impact employees' conditions and consultation rights.

The Fair Work Commission found that the proposed variations met the statutory requirements and were in the best interests of all parties involved. The Commission considered that the changes would not undermine the existing protections for employees and would facilitate the operational needs of the business. The new classification of 'Home Delivery Driver' was deemed appropriate given the evolving nature of the fast-food industry. The model consultation clause was also considered adequate for ensuring ongoing employee participation in decision-making processes. The Commission approved the application and made the necessary variations to the enterprise agreement.

The final orders included the incorporation of additional franchisees into the enterprise agreement and the new classification of 'Home Delivery Driver'. The amended model consultation clause was also adopted. The changes were effective from the date of the Commission's decision, ensuring that the enterprise agreement remains relevant and fair for all parties involved.

Orders