Yum! Restaurants Australia Pty Limited

[2019] FWC 2604

[2019] FWC 2604

FAIR WORK COMMISSION

DECISION

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

Yum! Restaurants Australia Pty Limited
(B2019/305)

DEPUTY PRESIDENT SAMS SYDNEY, 17 APRIL 2019

Application for a single interest employer authorisation – fast food industry – numerous franchisees – application granted – authorisation made.

[1] On 12 April 2019 an application was made by Yum! Restaurants Australia Pty Limited (‘Yum!’) and 78 other named employers (the ‘Employers’), pursuant to s 248 of the Fair Work Act 2009 (the ‘Act’) for a single interest employer authorisation in relation to a proposed enterprise agreement. I note an amended application was lodged on 15 April 2019. The Employers are engaged in the fast food industry as franchisees of Kentucky Fried Chicken.

[2] Section 248 of the Act provides as follows:

‘248 Single interest employer authorisations

(1) Two or more employers may apply to the 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:

•  the employers that will be covered by the agreement;

•  the employees who will be covered by the agreement; 

•  the person (if any) nominated by the employers to make applications under this Act if the authorisation is made.’

[3] The application specifies the following employers (the ‘Employers’) to be covered by the proposed agreement:

Baymax Pty Ltd

D & B Arnolda Family Pty. Limited as Trustee for the D&B Arnolda Family Trust

Sandyshore Pty Ltd as Trustee for the Ashton Family Trust

Athu Holdings Pty Ltd as Trustee for the Athurkorala Family Trust

Sangor Pty Ltd as Trustee for the Sangor Discretionary Trust

Sedar Warnambool Pty. Ltd as Trustee for the Sedar Warrnambool Discretionary Trust

Rigel Portland Pty. Ltd as Trustee for the Rigel Portland Discretionary Trust

Delah Hamilton Pty Ltd as Trustee for the Delah Hamilton Discretionary Trust

RTR Restaurants Pty Ltd

Marcamp Pty Ltd

Changela Food Py Ltd as Trustee for the Changela Family Trust

RSJ Family Pty Ltd

Mandir Pty Ltd as Trustee for the Chudal Family Trust

Broadview (Aust) Pty Ltd

Kozpat Pty Ltd as Trustee for the Kozpat Trust

Dimothenis Pty Ltd as Trustee for the Dimas Family Trust

Edelmanian Enterprises Pty Ltd

Red Earth Enterprises Pty Ltd

Free Grange Pty Ltd as Trustee for the Ellin Family Trust

Melsem Pty Ltd as Trustee for the RD Else Family Trust

S.P. Etheridge Pty Ltd as Trustee for the Etheridge Trust

Fishfood Trading Pty Ltd as Trustee for the Fisher Family Trust

Fishfood Holdings Pty Ltd

Stephkon Pty Ltd as Trustee for the Kon & Stephanie Genovezos Family Trust

MML Restaurant Group Pty Ltd as Trustee for the Glanville Family Trust

CMC Sydney Pty Ltd

H & L Family Restaurants Pty Ltd as Trustee for the Haydan Family Trust

TPH Group Pty Ltd

Southern Restaurants (Vic) Pty Ltd as Trustee for the Southern Trust

Southern Sun Restaurants Pty Ltd

Spencer Gulf Restaurants Pty Ltd as Trustee for the Spencer Gulf Restaurants Trust

Spencer Gulf Enterprises (SA) Pty Ltd

NM Higgon Investments Pty Ltd as Trustee for the Nichole Higgon No 2 Trust

Jasard Pty Ltd

QSR Pty Ltd (Restaurant Brands Australia)

Bookah Pty Ltd as Trustee for the Bookah Trust

Toronton Pty Ltd as Trustee for the Bellarine Ollies Unit Trust

Toronton Pty Ltd as Trustee for the RJ Hosking Family Trust

Toronton Pty Ltd as Trustee for the Colac Unit Trust

Mettle Pty Ltd as Trustee for the Scott Hosking Family Trust

Pomonal Pty Ltd as Trustee for the Stead Park Family Trust

HM (NSW) Pty Ltd as Trustee of the HM Unit Trust

St George Restaurants Pty Ltd

Lincron Pty Ltd

Wills Hill Operations Pty Ltd

Kayvier Pty Ltd as Trustee for the Kiki Family Trust

Lamstan Group Pty Ltd

Mylora Holdings Pty Ltd as Trustee for the Leonard Family Trust

Tridas Pty Ltd as Trustee for the Leonard Family Discretionary Trust

Mady Pty Ltd as Trustee for the Madytianos Family Trust

Collins Restaurants Management Pty Ltd

Collins Restaurants NSW Pty Ltd

Collins Restaurants South Pty Ltd

Collins Restaurants West Pty Ltd

Huntell Pty Ltd as Trustee for the Huntley-Mitchell Family Trust

Shayden Nominees Pty Ltd as Trustee for the C&M Income Trust

Pansummit Pty Ltd

Festival State Foods Pty Ltd

Vic Chick Pty Ltd

Raymond Family Partnership

Rusha Pty Ltd

RG Restaurants Pty Ltd

Westpark Operations Pty Ltd as Trustee for the Westpark Operations Unit Trust

Prime Corporation Australia Pty Ltd atf Rupani Family Trust

One One Pty Ltd

Mega Star Group Pty Ltd

Bluepetals Pty Ltd as Trustee of Soertsz Family Trust No 1 & Oceantime Pty Ltd as Trustee of the Soertsz Family Trust No 2, a partnership

Soertsz Trading Corporation Pty Ltd

M & C Soertsz Investment Pty Ltd as Trustee for the Suitsy Family Trust

Gfource Pty Limited

Premlata Pty Ltd as Trustee for the Tripathi Family Trust

Tucker Projects Pty Ltd as Trustee for the Tucker Family Trust

Turner Retail Pty Ltd as Trustee for the Turner Unit Trust

Zamm Enterprises Pty Ltd

W-R-Z Corporation Pty Ltd

C Wiles Investments Pty Ltd as Trustee for the Wiles Family Trust

Daymal Pty Ltd as Trustee for the Yapa Family Trust

Kentucky Fried Chicken Pty Limited

[4] The supporting documentation to the application specifies that the employees who will be covered by the proposed agreement are those employed by the Employers as Team Members (not including managerial employees), including employees engaged as commissaries or in home delivery call centres. The person nominated by the Employers to make this application is Yum!. Mr Jonathan D’Souza, People Capability Director, Human Resources for Yum!, provided a statement in support of the application. Mr D’Souza states that the Employers have agreed to bargain together and that no person coerced, or threatened to coerce, any of the Employers to agree to bargain together.

[5] Amongst other things, Mr D’Souza’s statement indicated that:

•  Competitive Foods, is no longer a franchisee of the applicant, and the outlets it operated (mainly in Western Australia) are now operated by another existing franchisee, Collins;

•  the Applicant no longer operates the Pizza Hut brand;

•  notwithstanding points 1 and 2 above, the single interest employer authorisation, if authorised, is to be in similar terms to the previous single interest employer authorisation for Kentucky Fried Chicken Pty Limited (‘KFC’) made by Vice President Watson on 19 October 2009 (PR98955); and

•  the Shop Distributive and Allied Employees Association (‘SDA’) consents to the authorisation being made.

[6] Section 249 of the Act sets out the matters to be considered by the Commission when determining applications of this kind:

‘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.’

[7] It is to be observed that if the Commission is satisfied that all the requirements set out in ss (1)-(3) of s 249 of the Act have been met, the Commission must make the single interest employer authorisation. Section 249(4) deals with the operation and duration of the authorisation.

[8] Given the nature of this application, I propose to determine it ‘on the papers’.

[9] Having considered the terms of the application and the accompanying statement of Mr D’Souza, I am satisfied that the Employers have agreed to bargain together and have not been subject to any coercion and that the relevant Employers are franchisees of the same franchisor. I have taken into account confirmation from the Union party to previous agreements covering the employees of the Employers, the SDA, that it consents to the application and is anxious to commence bargaining for a new enterprise agreement. Accordingly, I will issue a single interest employer authorisation for the Employers to bargain together for the proposed agreement.

[10] In accordance with s 249(4) of the Act, the single interest employer authorisation comes into operation on 17 April 2019 and will cease operation on the day on which the proposed enterprise agreement is made or on 17 April 2020, whichever is the earlier. An order to this effect will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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