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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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Shop, Distributive and Allied Employees Association in relation to instruments covering a new employer and non-transferring employees within the context of the Red Rooster Agreement 2009. The applicant sought orders that would ensure these instruments align with the broader terms and conditions of the agreement, including those pertaining to the new employer and non-transferring employees. The dispute centred on the interpretation and application of these instruments to maintain fairness and consistency within the agreement.

The legal issues the court had to address included the interpretation of the instruments concerning the new employer and non-transferring employees, and whether these instruments should be subject to the same terms and conditions as those outlined in the Red Rooster Agreement 2009. The court needed to determine if the provisions applied uniformly across all covered employees and if any exceptions were justified. Another key issue was the procedural fairness in the application process and whether the association had adequately demonstrated the necessity for the sought orders.

In its decision, the court emphasised the importance of uniformity and fairness in employment agreements. It found that the instruments should indeed reflect the terms of the Red Rooster Agreement 2009 to ensure that all employees, including the new employer and non-transferring employees, were treated equitably. The court acknowledged the procedural steps taken by the association but stressed the need for clear justification and evidence to support the application. Ultimately, the court granted the orders as sought, ensuring that the new employer and non-transferring employees were covered under the same terms and conditions as other employees within the agreement.

Shop, Distributive and Allied Employees Association

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established