Fair Work Act 2009

s.251 - Application for a variation of a single interest employer authorisation

125 365 175 Pty Ltd ATF HJ Heatherton Family Trust

Hungry Jack's Pty Ltd, Closecorp Foods Ballarat Pty Limited ATF Closecorp Ballarat Unit Trust & Closecorp Foods Horsham Pty Limited ATF Closecorp Horsham Unit Trust

Applications to vary single interest employer authorisation in B2024/989

• [1] The Commission has before it three related applications made under s.251 of the Fair Work Act 2009 (Act) to vary a single interest employer authorisation.

• [2] The Authorisation[1] was issued by the Commission under s.248 of the Act on 9 September 2024 and included 14 employers who each operate Hungry Jack's Restaurants in Queensland, New South Wales, Victoria and/or South Australia.

• By Closecorp Foods Ballarat Pty Limited ATF Closecorp Ballarat Unit Trust and Closecorp Foods Horsham Pty Limited ATF Closecorp Horsham Unit Trust (Closecorp Foods) to remove themselves from the Authorisation under s.251(1) of the Act.[2]

• By 125 365 175 Pty Ltd ATF HJ Heatherton Family Trust (Heatherton) to be added to the Authorisation under s.251(3) and (4) of the Act.

• Pyramid Foods Pty. Limited (Pyramid Foods) to be added to the Authorisation under s.251(3) and (4) of the Act.

• [4] The application by Closecorp Foods to remove themselves from the Authorisation is made on the basis that they no longer operate Hungry Jack's restaurants. The restaurants previously operated by them are now operated by Hungry Jack's Pty Ltd.

• [5] Heatherton and Pyramid Foods are franchisees of the same franchisor, being Hungry Jack's Pty Ltd. They operate Hungry Jack's restaurants in Victoria and New South Wales respectively.

• [6] The Shop, Distributive and Allied Employees Association (SDA) and the Australian Workers' Union - Queensland Branch (AWUQ) represent employees that are covered by the Authorisation and have supported these applications. The Commission has been advised that the Retail and Fast Food Workers Union (RAFFWU) is also a bargaining representative, and it raises no objection to the applications.

• [7] In the lead up to the determination of the matter, I directed that the Applicants' representatives provide notice to the employers presently specified in the Authorisation (existing employers), and that they may raise views and any concerns with the applications directly with the Commission. I add that the same additional opportunity was also provided to the employee bargaining representatives. This notice was provided, and the Commission has not been advised of any concerns and no party sought to be heard.

• [8] Having considered the applications, today I issued an Order[3] varying the Authorisation as sought. My reasons for doing so are briefly set out below.

• [9] The Act provides a scheme to add and remove employers from any single interest employer authorisation issued. The parties subject to an authorisation of this kind may apply either jointly, or separately, to the Commission for the variation of the authorisation. Different rules apply depending on whether the application is made by an employer or bargaining representative of an employee who will be covered by the proposed enterprise agreement.

• [10] The application to remove Closecorp Foods relies upon s.251(1), (2) and (2A) of the Act which provide as follows:

"251 Variation of single interest employer authorisations

(1) The following may apply to the FWC for a variation of a single interest employer authorisation to remove an employer's name from the authorisation:

(b) a bargaining representative of an employee who will be covered by the proposed enterprise agreement to which the authorisation relates.

(2) The FWC must vary the authorisation to remove the employer's name if:

(a) an application has been made under subsection (1); and

(b) the requirements of either subsection (2A) or (2B) are met.

(2A) The requirements of this subsection are met if the FWC is satisfied that:

(a) the employers specified in the authorisation and the bargaining representatives of the employees of those employers have had an opportunity to express to the FWC their views (if any) on the application; and

(b) because of a change in the employer's circumstances, it is no longer appropriate for the employer to be specified in the authorisation."

• [11] I observe that s.251(2B) and related provisions (not set out above) apply where the application is made by an employee bargaining representative and are not relevant here.

• [12] Closecorp Foods are eligible to make this application as the employers presently subject to the Authorisation who seek to be removed. In the circumstances present here, s.251(2) provides that if the requirements of ss.(2A) are met, the Commission must make the variation to remove the employer's name from the Authorisation. Those requirements are that:

• The existing employers and the bargaining representatives of the employees of those employers have had an opportunity to express to the Commission their views (if any) on the application; and

• because of a change in the employer's circumstances, it is no longer appropriate for the employer to be specified in the authorisation. I consider that this requires the Commission to be satisfied that there is a relevant change in circumstances from those evident at the time that the authorisation was made.

• [13] As to the first requirement, the Commission provided a direct opportunity for the existing employers to express their views to the Commission and to seek a hearing if required. The Commission also sought confirmation of their respective positions on the applications from employee bargaining representatives who confirmed that they support, or do not object to, all of the applications. These opportunities meet the requirements of s.251(2A)(a) of the Act.

• [14] In relation to the changed circumstances, as outlined earlier Closecorp Foods no longer operate Hungry Jack's restaurants.

• [15] I am satisfied that because Closecorp Foods no longer operate Hungry Jack's restaurants, there is a relevant change in their circumstances from those that existed at the time that the Authorisation was made, and that this also means that it is no longer appropriate for them to be specified in the Authorisation.

• [16] As a result, I was obliged to make an order removing Closecorp Foods from the Authorisation.

• [17] Sections 251(3), (4), and (8) and s.251(A) of the Act relevantly provide as follows:

(3) The following may apply to the FWC for a variation of a single interest employer authorisation to add the name of an employer (the new employer) that is not specified in the authorisation to the authorisation:

(i) for the proposed enterprise agreement to which the authorisation relates; and

(4) The FWC must vary the authorisation to add the new employer's name if:

(a) an application for the variation has been made; and

(i) the employers specified in the authorisation and the bargaining representatives of the employees of those employers have had an opportunity to express to the FWC their views (if any) on the application; and

(ii) if the application was made by the new employer under paragraph (3)(a) - no person coerced, or threatened to coerce, the new employer to make the application; and

(iii) if the application was made by a bargaining representative under paragraph (3)(b) - the requirements of subsection (5) are met; and

(iv) the requirements of subsection 249(2) or (3) (which deal with franchisees and common interest employers) would continue to be met if the new employer's name were added; and

(v) if the requirements of subsection 249(3) would continue to be met if the new employer's name were added - the operations and business activities of the new employer are reasonably comparable with those of the employers specified in the authorisation.

Employers and employees that are already bargaining

(8) Despite subsection (4), the FWC may refuse to vary the authorisation if the FWC is satisfied that:

(a) the new employer is bargaining in good faith for a proposed enterprise agreement that will cover the new employer and the employees of the new employer that will be covered by the agreement, or substantially the same group of those employees; and

(b) the new employer and those employees have a history of effectively bargaining in relation to one or more enterprise agreements that have covered the new employer and those employees, or substantially the same group of those employees; and

(c) on the day that the FWC will vary the authorisation, less than 9 months have passed since the most recent nominal expiry date of an agreement referred to in paragraph (b).

251A Restriction on variation of single interest employer authorisation

Despite subsection 251(4), the FWC must not vary a single interest employer authorisation if, as a result of the variation, the proposed enterprise agreement to which the authorisation relates would cover employees in relation to general building and construction work."

• [18] I observe that subsections (4A), (5), (5A), (6) and (7) apply where the application is made by an employee bargaining representative and are not relevant here.

• [19] I briefly confirm the basis of my satisfaction with the relevant requirements below.

• [20] Heatherton and Pyramid Foods (new employers) are not presently specified in the Authorisation and have each made a valid application to vary it. This meets the requirements of s.251(3) and s.251(4)(a) of the Act.

• [21] The existing employers and the employee bargaining representatives have had an opportunity to express their views to the Commission. This meets the requirements of s.251(4)(b)(i) of the Act.

• [22] I am satisfied that no person has coerced or threatened to coerce the new employers to make the application. This meets the requirements of s.251(4)(b)(ii) of the Act.

• [23] The balance of the requirements in s.251(4)(b) call up certain statutory requirements for the making of a single interest employer authorisation in s.249 of the Act. The immediately relevant provisions are:

(2) The requirements of this subsection are met if 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

• [24] The material before the Commission confirms that the requirements in s.249(2) will continue to be met if the new employer's names were added to the Authorisation because they are each franchisees of the same franchisor and carry on similar business activities under the same franchise.
• [25] Neither of the new employers are currently bargaining for a proposed enterprise agreement that would cover any of their relevant employees. Section 251(8) does not apply to provide a basis to refuse the variation.

• [26] The addition of the new employers to the Authorisation would not result in the proposed enterprise covering any employees in general building or construction work. This meets the requirements of s.251A of the Act.

• [27] I was satisfied that all of the requirements for making a variation to add the new employers had been met and the Commission was then obliged by the Act to grant the applications.

• [28] Being satisfied that all of the requirements for making the variations sought to the Authorisation had been met, an Order[4] confirming the variations is being issued by the Commission in conjunction with this decision.

[1] PR778634.

[2] Hungry Jacks Pty Ltd is also an applicant in this matter, and I have treated this as an indication of support for the application noting the scope of applicants contemplated by s.251(1) of the Act.

[3] PR790994.

[4] PR790994.

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