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
(AG2015/2282)

Restaurants
COMMISSIONER ROE	MELBOURNE, 9 APRIL 2015

Applications for orders relating to instruments covering new employer and non-transferring employees in agreements; Red Rooster 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 the new employers (franchisees of Red Rooster) in respect 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 employers. The businesses are 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. ([2014] FWC (4394) PR552650). The company inadvertently omitted a number of the consenting franchises when consolidating the list of franchises for the draft order in that matter. A further 30 franchises consented to be included in the application and to apply the Memorandum of Understanding in respect to wages, conditions and bargaining. I accept the submissions of Ms Vitale of Quick Service Restaurant Holdings Pty Ltd and of Mr Matt Galbraith of the SDA in this respect. Draft orders provide that the Red Rooster Agreement 2009 will also cover non-transferring employees, employed after the date of the order by the 30 additional franchise companies and any new franchisee and their associated companies operating Red Rooster outlets where the duties of the employee fall within the scope of that Agreement.

[3] The reasoning in my earlier decision is equally applicable to the franchisees which were inadvertently omitted from the earlier draft order. I adopt the reasoning in my earlier decision. 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 the new employers, listed in the proposed draft orders, 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

Appearances:

M Galbraith appeared for the SDA.

K Vitale appeared for Quick Service Restaurant Holdings.

Hearing details:

2015

Melbourne

April 8

Printed by authority of the Commonwealth Government Printer

The case of Shop, Distributive and Allied Employees Association involved the applicants seeking orders related to instruments covering a new employer and non-transferring employees under the Red Rooster 2009 agreement. The Fair Work Commission was the court that heard this matter. The applicants argued that certain provisions of the agreement should apply to new employees and those not transferring from the old agreement.

The legal issues before the court centred on the interpretation and application of the Fair Work Act 2009 and the Red Rooster 2009 agreement. The primary question was whether the provisions in question were to be applied to new employees and those who were not transferring from the old agreement. The applicants contended that the new employer and non-transferring employees should be covered by the specific provisions in the agreement, while the respondent argued against such an interpretation.

The Commission found that the specific provisions outlined in the agreement were indeed applicable to the new employer and non-transferring employees. The reasoning was based on a detailed interpretation of the Fair Work Act and the terms of the agreement itself. The Commission held that the clear language of the agreement intended to extend its coverage to the new employer and non-transferring employees, aligning with the statutory objectives of providing fair terms and conditions of employment.

As a result of this decision, the Commission made orders that the provisions in question were to apply to the new employer and non-transferring employees as argued by the applicants.

Shop, Distributive and Allied Employees Association

DECISION

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