Shop, Distributive and Allied Employees Association

[2015] FWC 3083

[2015] FWC 3083

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

Shop, Distributive and Allied Employees Association
(AG2015/2534)

Restaurants
COMMISSIONER ROE	MELBOURNE, 5 MAY 2015

Application for orders relating to instruments covering new employer and non-transferring employees in agreements; Red Rooster Agreement 2009.

[1] The Shop, Distributive and Allied Employees’ Association (SDA or the Applicant) has made an application under Section 319(1)(b) of the Fair Work Act 2009 (the Act). The SDA is seeking orders that the transferable instrument, the Red Rooster Agreement 2009 (the Agreement), that covers a new employer, Manuele Enterprises Pty Ltd (franchisee of Red Rooster), in respect to transferring employees (i.e. those employed at the time of the transfer) will also cover non-transferring employees who perform the transferring work for the new employer. The business is controlled by Quick Service Restaurant Holdings. This means that all of the new employers’ employees who perform the transferring work (whether they are transferring employees or non-transferring employees) will be covered by the transferable instrument. The nominal expiry date of the Agreement is 30 September 2013.

[2] I made a Decision and Order in respect to 128 Red Rooster Franchises on 2 July 2014 1, and a further Decision and Order in respect to a further 30 franchises on 9 April 2015.2

[3] The reasoning in my earlier decisions is equally applicable to the franchise, Manuele Enterprises Pty Ltd. In that decision I set out the relevant background and addressed each of the relevant requirements of Sections 311, 312, 313, 314 and 319 of the Act. I am satisfied that the application is properly made and that the pre-requisites for making the order are met. Taking into account each of the matters set out in Section 319(3) of the Act, I am satisfied on balance that the orders sought should be made.

[4] Orders will be issued to provide that the Agreements will also cover the non-transferring employees of Manuele Enterprises Pty Ltd, who perform similar or the same work as the transferring employees.

[5] In accordance with Section 319(4) of the Act, the order takes effect in respect of each of the non-transferring employees on and from the date of the Orders, or the date from which the employment commences, whichever is the later.

COMMISSIONER

 1   [2014] FWC 4394 and PR552651.

 2   [2015] FWC 2456 and PR562925.

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<Price code A, AE874691  PR567035 >