Tasty Trucks VIC Pty Ltd

[2014] FWC 3335

[2014] FWC 3335

FAIR WORK COMMISSION

DECISION

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

Tasty Trucks VIC Pty Ltd
(B2014/732)

COMMISSIONER BULL SYDNEY, 23 MAY 2014

Application for single interest employer authorisation.

[1] Tasty Trucks VIC Pty Ltd T/A Tasty Trucks (the Applicant) has made an application pursuant to s.248 of the Fair Work Act 2009 (the Act) for a single interest employer authorisation.

[2] The application relates to a proposed enterprise agreement to be known as the Tasty Trucks Australia (Production) Agreement 2014 (the Agreement).

The legislation

[3] Section 248 of the Act provides:

248 Single interest employer authorisations

(1) Two or more employers may apply to FWC for an authorisation (a single interest employer authorisation) under section 249 in relation to a proposed enterprise agreement.

Note: The effect of a single interest employer authorisation is that the employers are single interest employers in relation to the agreement (see paragraph 172(5)(c)).

(2) The application 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.

[4] Section 172(5) of the Act states:

Single interest employers

(5) Two or more employers are single interest employers if:

(a) the employers are engaged in a joint venture or common enterprise; or

(b) the employers are related bodies corporate; or

(c) the employers are specified in a single interest employer authorisation that is in operation in relation to the proposed enterprise agreement concerned.

(My emphasis)

The application

[5] The application as required by s.248(2)(a) of the Act states that the following employers, who are said to be franchisees under a franchise agreement with Tasty Trucks Franchising Pty Ltd, are to be covered by the proposed Agreement:

● Tasty Trucks VIC Pty Ltd, ACN 004 459 429
● Tasty Trucks NSW Pty Ltd, ACN 154 893 213
● Street Chef Investments Pty Ltd, ACN 117 786 586

[6] Pursuant to s.248(2)(b) of the Act the application provides that the employees to be covered by the proposed Agreement are production employees engaged in any one or more than one of the preparation, cooking, packing of food and beverages and displaying of food and beverages on the company vans including supervisors.

[7] Section 248(2)(c) of the Act requires that the application must specify the person (if any) nominated by the employers to make applications under the Act if the authorisation is made. Mr Darren Lloyd of Tasty Trucks VIC Pty Ltd states he is duly authorised to make this application on behalf of all employers outlined at paragraph 5 above.

[8] Section 249 of the Act outlines when the Fair Work Commission (the Commission) must make a single interest employer authorisation:

Singe interest employer authorisation

(1) 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) 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 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 FWC is satisfied that all of the employers are specified in a declaration made under section 247 in relation to the agreement.

(My emphasis)

[9] Attached to the application were two statutory declarations from Mr Colin Lear, Managing Director of Tasty Trucks VIC Pty Ltd and Tasty Trucks NSW Pty Ltd and Mr Noel Parora, Company Director of Street Chef Investments Pty Ltd. Both statutory declarations state that the employers named in the application will be covered by the proposed Agreement and have agreed to bargain together and that no person coerced, or threatened to coerce the employers to agree to bargain together with the other employers.

[10] On the basis of the application that has been filed with the Commission together with the statutory declarations, I am satisfied that the pre-conditions set out in s.249(1)(a) and (b) have been met.

[11] In relation to the requirements set out in s.249(1)(c) of the Act, I am satisfied that these requirements have been met. That is, the statutory declarations state that the employers operate a similar business activity known as Tasty Trucks under a master franchise agreement with Tasty Trucks Franchising Pty Ltd which is the franchisor such that the requirements of s.249(2)(a) are met.

[12] The Shop, Distributive and Allied Employees Association (SDA) were given notice of the application and the Commission requested the views of the SDA. The SDA advised that it did not intend to make any submission with respect to the application.

[13] Having been satisfied as to the pre-conditions, set out at s.249(1),(2) and (3) of the Act, the Commission must therefore make the single interest employer authorisation.

[14] Pursuant to s.250 of the Act, the single interest employer authorisation will specify that the employers who will be covered by the Agreement will be:

● Tasty Trucks VIC Pty Ltd
● Tasty Trucks NSW Pty Ltd
● Street Chef Investments Pty Ltd

[15] The single interest employer authorisation will specify for the purposes of s.250(1)(b), that the employees who will be covered by the Agreement are production employees engaged in any one or more than one of the preparation, cooking, packing of food and beverages and displaying of food and beverages on the company vans including supervisors.

[16] Further, the single interest employer authorisation will specify, for the purposes of s.250(1)(c), that the person nominated by the employers to make applications under the Act as Mr Darren Lloyd of Tasty Trucks VIC Pty Ltd.

[17] The single interest employer authorisation will come into operation from the date of this decision, 23 May 2014.

COMMISSIONER

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