Schnitz QV Pty Ltd and others

[2014] FWC 7806

[2014] FWC 7806

FAIR WORK COMMISSION

DECISION

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

Schnitz QV Pty Ltd and others
(B2014/1509)

DEPUTY PRESIDENT SAMS SYDNEY, 7 NOVEMBER 2014

Application for a single interest employer authorisation - franchisees of Schnitz restaurants seek new enterprise agreement - relevant tests - application granted.

[1] By application, pursuant to s 248 of the Fair Work Act 2009 (the ‘Act’), the following employers (the ‘applicants’) seek the approval of the Fair Work Commission (the ‘Commission’) of a single interest employer authorisation in relation to a proposed new enterprise agreement:

• A.M.J Investment Group Pty Ltd;



• Beladome Pty Ltd;



• D&K Pacific Trading Pty Ltd;



• Gnowmadawot Pty Ltd;



• M.S.Q Investment Group Pty Ltd



• OHL Enterprises Pty Ltd;



• Schnitz QV Pty Ltd; and



• Siegerteam Pty Ltd.

[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 and 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] The application relied on a statutory declaration of Mr D De Vries, Director of Schnitz QV Pty Ltd. He explained that the applicants had agreed to bargain together, and accordingly, an application had been made for them to be treated as a single interest employer for the purposes of bargaining for an enterprise agreement proposed to be called the MQSR Enterprise Agreement 2014. This enterprise agreement would cover Team Members, Team Leaders, Assistant Managers, Restaurant Managers, Kitchen Hands, Cooks and Head Cooks. He deposed that no person had coerced or threatened to coerce any of the employers to bargain together and that all of the employers owned and carried on similar business activities pursuant to the Schnitz restaurant franchise.

[4] The application was listed for hearing on 31 October 2014. Mr C Ni, Solicitor appeared with Mr D De Vries for the applicants. Mr Ni explained that this was the first time that these employers had proposed to enter into an enterprise agreement with their employees and that until now, they have been covered by the Restaurant Industry Award 2010 [MA000119]. Franchises of Schnitz restaurant have been operating across Victoria since 2009 and will be shortly moving into New South Wales.

[5] Having considered the applicants’ submissions and upon reviewing the documentation accompanying the application, specifically the statutory declaration of Mr De Vries, I am satisfied that the employers have agreed to bargain together and have been subject to no coercion (s 249(1)) and that the relevant employers are franchisees of the same franchisor (s 249(2)(a)). Accordingly, I will issue a single interest employer authorisation for the applicants to bargain together for an agreement to cover Team Members, Team Leaders, Assistant Managers, Restaurant Managers, Kitchen Hands, Cooks and Head Cooks (ss 250(1)(b), (2)). Pursuant to s 249(4) of the Act, the single interest employer authorisation comes into operation on 31 October 2014 and will cease operation on the day on which the proposed enterprise agreement is made or on 31 October 2015, whichever comes first. Orders to that effect will be published contemporaneously with this decision.

DEPUTY PRESIDENT

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