s.242 - Application for the FWC's approval of a supported bargaining authorisation

Shop, Distributive and Allied Employees Association

McDonald's Australia Limited and various employers operating McDonald's stores in various States and Territories

(B2025/1130, B2025/1132, B2025/1136, B2025/1138, B2025/1140, B2025/1143, B2025/1144)

Applications for the approval of a supported bargaining authorisation - application to stay or adjourn proceeding pending determination of related judicial review proceeding - application refused

• [1] On 11 July 2025 the Shop, Distributive and Allied Employees Association (SDA) made seven applications (the relevant applications) for supported bargaining authorisations pursuant to s.242(1) of the Fair Work Act 2009 (Cth) (the FW Act).

• [2] The authorisations are sought in respect of bargaining for seven separate proposed multi-enterprise agreements covering McDonald's Australia Limited (MAL), specific named employers and any other employer employing labour at, or in connection with the operation of, a franchised McDonald's restaurant (collectively referred to as the McDonald's Parties) where that work falls within the classification definitions provided at clause 12.4 of the Fast Food Industry Award (FFI Award) and/or comprises maintenance work at or in connection with McDonald's restaurants. Two of the proposed multi-enterprise agreements would cover employers and employees in New South Wales, albeit in different geographical locations. One of the New South Wales proposed agreements would also cover employers and employees in the Australian Capital Territory. The remaining five proposed multi-enterprise agreements would cover employers and employees in Queensland, Victoria, Tasmania, the Northern Territory, and Western Australia respectively.

• [3] The relevant applications were initially listed for a case management conference before Deputy President Hampton on 28 August 2025. At the case management conference, the parties foreshadowed making initial interlocutory applications and were directed to file such applications by 11 September 2025.

• [4] The relevant applications are in similar terms to an application by the SDA for a supported bargaining authorisation covering McDonald's franchisees in South Australia which was recently considered by a Full Bench of the Fair Work Commission (Commission). In its decision dated 30 June 2025 (the SA Decision),[1] the Full Bench concluded that it is appropriate for the South Australian McDonald's franchisees (the SA Licensees) and their employees that will be covered by the multi-enterprise agreement proposed by the SDA to bargain together and made a supported bargaining authorisation giving effect to that decision.

• [5] On 21 July 2025, several of the SA Licensees filed an application in the Federal Court of Australia (FCA Proceeding) seeking judicial review under s.39B of the Judiciary Act 1903 (Cth) of the SA Decision. On 11 September 2025, the McDonald's Parties sought that each of the relevant applications be stayed/adjourned until the hearing and determination of the FCA Proceeding, or further order. This decision deals with the stay application.

• [6] The McDonald's Parties contend that the validity of the supported bargaining authorisation is in issue in the FCA Proceeding. Several of the grounds of judicial review challenge the path of reasoning adopted by the Full Bench, associated with constructional disputes about the operation of the relevant provisions. The McDonald's Parties submit that the relief that the applicants seek in that proceeding would quash the SA Decision and associated authorisation and compel the Commission to redetermine the SDA's application according to law.

• [7] The McDonald's parties submit that until the FCA Proceeding is determined, the Commission will inevitably adopt that same path of reasoning, based on the same construction of the provisions, as that adopted by the Full Bench in the SA Decision in considering the each of the relevant applications. The McDonalds parties submit that if the Court in the FCA Proceeding concludes that this path of reasoning and that construction was erroneous, then any supported bargaining authorisations made in each of the relevant applications would equally have been made on an erroneous basis and liable to be quashed.

• [8] Section 589 of the FW Act provides that the Commission 'may make decisions as to how, when and where a matter is to be dealt with'. This provision has been described as sufficiently broad to empower the Commission to defer dealing with a matter pending the outcome of proceedings in another jurisdiction.[2]

• [9] The approach generally adopted by the courts to a stay application is to consider whether it is in the interests of justice to stay a particular proceeding having regard to the whole of the circumstances of the case.[3]

• [10] The parties referred me to a number of cases which have dealt with applications such as the one before me.

• [11] In Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union (Teys),[4] there was a dispute between the parties as to whether a 'remuneration document' made pursuant to an enterprise agreement set the rates of pay for employees covered by the enterprise agreement. The Australasian Meat Industry Employees Union (AMIEU) sought to have the dispute dealt with by the Commission in accordance with the dispute resolution procedure in the enterprise agreement. Subsequently, Teys Australia Beenleigh Pty Ltd (TAB) filed an Originating Application in the Federal Court seeking a declaration that the remuneration document does not form part of the enterprise agreement. Teys also sought an interlocutory injunction prohibiting the Commission from taking any further steps in relation to the dispute filed by the AMIEU. In considering the TAB's stay application, Justice Bromberg identified the following six matters as relevant to his discretion:

1. The Federal Court's specialist function is the determination of controversies concerning existing rights and liabilities, including under the FW Act, whereas this is not the traditional function of the Commission, although it deals with the interpretation of enterprise agreements and their consistency with provisions of the Act.
2. The Commission is an inferior tribunal which will be assisted by the reasons for judgment of superior courts of record such as the Federal Court.
3. The dispute raises complex legal issues concerning the interpretation of the FW Act scheme for the making of enterprise agreements and their variation, and in particular the ability of the parties to modify the operation of enterprise agreements otherwise than through the process of approval and variation under the FW Act. Those issues of law deserve the attention of a superior court.
4. The issues raised are of general importance as they are likely to arise in relation to many enterprise agreements in the meat-processing industry.
5. Most importantly, if the substantive question continues to determination in private arbitration and in the Federal Court, there is the potential for the answers to be inconsistent. However, this would not be an especially weighty consideration if there was a standard appeal mechanism to the Federal Court for arbitration outcomes.

• 6. The potential for the delay of the Commission proceeding.[5]

• [12] Justice Bromberg concluded that the interests of justice favoured the determination of the substantive question in Federal Court before the arbitration proceeds in the Commission with the first five of the six factors listed militating in favour of that conclusion, and the sixth potentially counting against it, but on a limited basis in the circumstances of this case.[6]

• [13] The parties also referred me to the decision in Sterling Pharmaceuticals Pty Limited v The Boots Company (Australia) Pty Limited (Sterling Pharmaceuticals).[7] The applicant in that case, Sterling Pharmaceuticals Pty Limited (Sterling), was a subsidiary of its United States based parent and the supplier of 'Panadol' in Australia. The respondent in that case, Boots Co (Australia) Pty Ltd (Boots Australia) was a subsidiary of its United Kingdom based parent and the supplier of 'Nurofen' in Australia. Sterling brought proceedings against Boots in respect of alleged breaches of the Trade Practices Act 1974 in relation to the following statement on Nurofen packaging:

Nurofen is gentler on the stomach than Aspirin and is as well tolerated as Paracetamol.

• [14] Similar proceedings had earlier been commenced in the High Court of New Zealand by Sterling Pharmaceuticals (NZ) Ltd against The Boots Co (New Zealand) Ltd. Consequently Boots Australia applied for a stay of the Australian proceedings pending the outcome of the proceedings in New Zealand. In determining the stay application, Justice Lockhart identified the following matters as relevant to his consideration:

• Which proceeding was commenced first.
• Whether the termination of one proceeding is likely to have a material effect on the other.
• The public interest.
• The undesirability of two courts competing to see which of them determines common facts first.
• Consideration of circumstances relating to witnesses.
• Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted.
• The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.
• How far advanced the proceedings are in each court.
• The law should strive against permitting multiplicity of proceedings in relation to similar issues.

• • Generally balancing the advantages and disadvantages to each party.[8]

• [15] The McDonald's Parties referred me to a number of decisions of the Commission where the principles in Teys and Sterling Pharmaceuticals were applied, however it should be noted that a rigid application of the considerations in Teys and Sterling Pharmaceuticals may operate to inappropriately confine the exercise of the Commission's discretion.[9] In Re Esso Australia,[10] Deputy President Gostencnik, as His Honour then was, observed that in an application of this kind, the proper exercise of the discretion requires that relevant matters be taken into account and weighed in order to determine whether a proceeding should be adjourned.[11]

• [16] In Metro Trains Melbourne Pty Ltd T/A Metro Trains v Australian Rail, Tram and Bus Industry Union,[12] Commissioner Lee was considering an application made by Metro Trains pursuant to s.739 of the FW Act for the Commission to deal with a dispute in accordance with a dispute settlement procedure. The dispute was about the amount of training required to be given to train drivers. The other party to the dispute, the Australian Rail, Tram and Bus Industry Union (RTBU), made an application to the Federal Court in relation to the proper construction of the relevant enterprise agreement 10 days after the s.739 dispute was filed. The decision dealt with whether it was appropriate to set directions and proceed to an arbitration of the s.739 application or to adjourn the proceedings pending the resolution of the matter in the Federal Court. Commissioner Lee described the circumstances of the case before him as 'more akin to the circumstances' in Teys.[13] In deciding to adjourn the application, Commissioner Lee had particular regard to Justice Bromberg's observations in Teys as to the Court's specialist function being the final determination of the legal rights of the parties under the FW Act, the Commission being an inferior tribunal which will be assisted by the reasons of the Court and the potential for the answers to be inconsistent if the substantive question continues to determination in private arbitration and at the same time in the Court. The Commissioner also noted that there was some complexity in the matter and was not satisfied that the Commission proceeding to arbitrate the matter at that time would make a dramatic difference to the timetable for resolution.[14]

• [17] In MMA Offshore Vessel Operations Pty Ltd t/as MMA Offshore v Construction, Forestry and Maritime Employees Union (MMA),[15] Vice President Gibian was dealing with an application arising from a notice of appeal filed by an employer against a decision of Deputy President O'Keefe regarding a dispute under the relevant enterprise agreement about long service leave entitlements. The employer subsequently commenced proceedings in the Federal Court seeking declaratory relief on the question of long service leave which it said was material to the appeal. The employer then filed an application seeking an order that the directions and appeal hearing be adjourned pending determination of the application before the Federal Court. The Vice President declined to adjourn the appeal proceedings for reasons which included that the appeal proceedings constituted a continuation of the Commission dealing with the dispute and as such it was not in the interests of justice to countenance a party seeking to move the dispute to a different forum midstream because it has received a ruling with which it disagrees;[16] unlike the situation in Teys, the Commission proceedings and the Federal Court proceedings were not at the same stage with the Deputy President having already determined the disputed question of interpretation;[17] although the appeal involved a question concerning the interpretation of an enterprise agreement, the employer accepted that the question is not complex and did not dispute that the matter is able to be appropriately determined by the Commission;[18] and there is a reasonable prospect that the appeal proceedings will resolve the disputed question of construction at least in relation to the relevant enterprise agreement.[19] The Vice President said that the factor which most favoured adjourning the appeal was the possibility of inconsistent decisions in the Commission and the Federal Court in relation to the proper construction of the enterprise agreement but considered that this was an unlikely eventuality if the appeal proceedings continued because the appeal was likely to resolve the dispute.[20]

• [18] In Syed Mubashir v Rasier Pacific Pty Ltd, Uber BV, Uber Australia Pty Ltd T/A Uber,[21] the applicant sought a stay of his unfair dismissal application pending the outcome of Federal Court proceedings commenced on his behalf which claimed that Uber failed to maintain employee records and provide pay slips in contravention of s.535 and 536 of the FW Act. A preliminary issue which required determination in both the unfair dismissal and Federal Court proceeding was whether the applicant was an employee. Deputy President Masson noted that the considerations in Teys which weighed in favour of an adjournment were that the Commission is an inferior tribunal to that of the Federal Court; the Federal Court's specialist function is to finally determine the rights of persons under the Act, save for rights of appeal to the High Court; and that the issues raised, that of the employment status of Uber rideshare drivers, are of general importance. The Deputy President believed that in the circumstances of the case before him the risk of inconsistent answers weighed less heavily than might otherwise be the case because the applicant had initiated both proceedings. The Deputy President was also concerned about the potential delay of acceding to the adjournment request. Ultimately the Deputy President declined to adjourn the unfair dismissal application having regard to matters which included when those proceedings were initiated, that their adjournment would have no material impact on the Federal Court Proceedings and that they were advanced to the point that a hearing date to deal with the jurisdictional point had been scheduled.

• [19] In Re Esso Australia,[22] Esso had made an application to terminate an enterprise agreement under s.225 of the FW Act. These proceedings were adjourned pending the making of a workplace determination covering the same parties covered by the relevant agreement following a s.424 order. While the workplace determination decision was reserved, the s.424 order was revoked following a judgement by the High Court that the action subject to the s.424 order was not protected action, with the consequence that the jurisdictional foundation upon which a workplace determination would have been built was removed. Esso then sought to progress the s.225 application. The revocation order was subject to a judicial review application in the Federal Court. The union parties sought a stay of the s.225 proceedings pending the outcome of the judicial review application. In determining the matter, Deputy President Gostencnik, said that ordinarily, in circumstances where a pending judicial review proceeding would have a material legal effect on a proceeding before the Commission, justice would require an adjournment to await the Court's judgment. However, those circumstances did not arise in the matter before him as the s.225 application did not depend for its efficacy on the outcome of the judicial review proceeding. In declining the adjournment request, the Deputy President observed that the outcome of the judicial review proceeding may in a practical sense render the s.225 application unnecessary and Esso may elect not press its application, but the outcome of the judicial review proceeding would not prevent Esso from pressing its application nor would it affect the jurisdiction the Deputy President had to deal with the application, at least not until a workplace determination or replacement agreement is made.[23]

• [20] I have considered these cases in determining the matter before me but note that each of them turned on their own facts and circumstances. There have been a limited number of supported bargaining authorisation applications, so the specific facts and circumstances arising from the application before me have not previously been considered by the Commission.

• [21] In their submissions, the McDonald's Parties explained the appeal grounds in the following way:

Ground 1 asks whether s 243(1)(b) required the Commission to exclude, from its evaluation of whether or not it was appropriate for the SA franchisees and their employees to bargain together under Division 9 of Part 2-4, considerations arising from other modes of bargaining available under Part 2-4. Ground 2 asks whether the 'prevailing rates of pay' to which s 243(1)(b)(i) refers are relevant in and of themselves, or only insofar as they establish that it is appropriate for the respondent employers to bargain together. Grounds 3 and 4 raise issues which, whilst emerging in the particular factual context of the proceedings the subject of the SA Decision, are nonetheless likely to be commonly encountered in applications of this type.

• [22] The McDonald's Parties submit that the interests of justice favour those questions being conclusively determined by a superior court within an appellate structure, rather than by an administrative tribunal performing an arbitral function from which limited curial review may lie. The McDonald's Parties submit that if these proceedings progress first, there is a risk of inconsistent constructions of s.243 as between the competing proceedings, and thus between the SA licensees impacted by the SA Decision on the one hand, and those franchisees (and MAL) impacted by these proceedings on the other. Further, if the Commission proceeds to hear and determine the present applications in the meantime and makes authorisations following the essential reasoning in the SA Decision (which it would be expected to do), those authorisations would be equally subject to successful review in the Court in the event the franchisees succeed in the FCA Proceeding. By contrast, there is no material prejudice to the SDA or its members in the Federal Court proceeding to consider the originating application first.

• [23] The McDonald's Parties submit that there is unlikely to be any material difference in the nature of the cases the SDA advances in each of the present applications, as compared with that it advanced in the SA Proceeding. Further, a cursory review of the SA Decision reveals that much of the Full Bench's reasoning toward its state of satisfaction under s.243, rested upon operating features which are common across Australia. Resolution of the FCA Proceeding will thus have a material impact upon how the parties' respective cases are advanced here (including upon the respective strength of those cases), and may obviate the need for a contested hearing in these proceedings. Conversely, allowing these proceedings to progress first risks substantial wasted time and cost in the event the McDonald's Parties succeed in the FCA Proceeding.

• [24] The McDonald's Parties submit that there are competing proceedings dealing with the same subject-matter being the proper construction of s.243 of the FW Act, and consequently, the real risk of conflicting decisions between the Commission and the Federal Court should these proceedings not be adjourned. If the Commission proceeds to form an opinion about the proper construction of s.243 inconsistent with that which the Court were to subsequently determine, the outcome with respect to the McDonald's Parties in these proceedings would stand as an outlier, subject to the limited avenues of review under s 39B of the Judiciary Act.

• [25] The McDonald's Parties submit that it is likely that the FCA Proceeding will be listed for hearing in March 2026. They submit that assuming that the seven applications are listed for hearing in early 2026, it is likely that the Commission will issue its decision in relation to those applications around the same time that the Federal Court will make a decision in relation to the FCA Proceeding. McDonald's estimates that time to be around June 2026. On this basis, the McDonald's Parties submit that any delay to the seven applications is likely to be minimal.

• [26] The SDA submits that the right of the parties before the Commission to have their matters determined in the ordinary way, is consistent with the Commission's obligation to perform its functions and exercise its powers in a manner that is fair and just and is quick, informal and avoids unnecessary technicalities. The Commission is required to exercise its jurisdiction when properly invoked. In that context, unnecessary delay in a proceeding speaks against the proper administration of justice.

• [27] The SDA submits that in Teys and Sterling Pharmaceuticals (and the line of cases that rely upon them), the essential questions for the Court were whether it was appropriate to allow separate proceedings between the same parties as to the same controversy to continue, and if not, whether the proceeding in which the stay application was made should await the other. Further neither case concerns the exercise of jurisdiction of a specialist tribunal, exercising its area of specialisation conferred by statute.

• [28] The SDA submits that most importantly the FCA Proceeding cannot determine the outcome of the current sets of proceedings. Whether or not a supported bargaining authorisation is made in the current sets of proceedings will turn on the evidence adduced in these sets of proceedings.

• [29] The SDA submits that regardless of the outcome of the FCA Proceeding, it will be necessary for these sets of proceedings to be determined by the Commission, by reference to the evidence led by the parties in these sets of proceedings, whether a supported bargaining authorisation should be made. The applicant will need to establish the entitlement to the authorisation on the basis of evidence that it leads, and the respondents will be entitled to adduce evidence in response, including by reference to what they anticipate might be the outcome of the FCA Proceeding.

• [30] The starting point in determining what justice requires in the circumstances is to consider the circumstances in which the application for a stay by the McDonald's Parties is made.[24] Those circumstances are the making of a supported bargaining authorisation that applies to the SA Licensees and their employees.

• [31] By way of background, the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (SJBP Act) amended the FW Act to make provision for bargaining representatives, including employee organisations, to make an application for a supported bargaining authorisation in relation to a proposed multi-enterprise agreement. This was to replace the previous 'low paid bargaining stream.'

• [32] These amendments were first considered by the Full Bench in Application by UWU, AEU and IEU.[25] In that case, the Full Bench observed that the low-paid bargaining scheme essentially failed to achieve its legislative purpose, which included to assist and encourage low paid employees and their employers, who have not historically had the benefits of collective bargaining, to make an enterprise agreement that meets their needs.[26] The current scheme of supported bargaining substantially modifies the previous low-paid bargaining scheme with the objective of rendering the scheme more accessible and therefore more widely-used.

• [33] The scheme requires the Commission to make a supported bargaining authorisation in relation to a proposed multi‑enterprise agreement if each of the requirements specified in paragraphs (a), (b) and (c) of s.243(1) of the FW Act are satisfied. Section 243(1)(a) deals with the requirement that an application for the authorisation has been made. Section 243(1)(c) deals with the requirement that at least some of the employees who will be covered by the agreement are represented by an employee organisation.

• [34] Section 243(1)(b) deals with whether the Commission is satisfied that it is appropriate for the employers and employees that will be covered by the agreement to bargain together, having regard to:

(i) the prevailing pay and conditions within the relevant industry or sector (including whether low rates of pay prevail in the industry or sector); and

(ii) whether the employers have clearly identifiable common interests; and

(iii) whether the likely number of bargaining representatives for the agreement would be consistent with a manageable collective bargaining process; and

(iv) any other matters the FWC considers appropriate

• [35] In the SA Decision, the Full Bench observed that the relevant primary facts were not in dispute, however the parties differed as to the inferences to be drawn from those facts and the matters to which emphasis and weight should be given. The Full Bench also noted that it was not in dispute that an application had been made and said that the evidence establishes to its satisfaction that at least some of the employees who will be covered by the proposed agreement are represented by the SDA.[27] The Full Bench said that the contest between the parties concerned whether the Commission could be satisfied that it is appropriate for the SA Licensees and their employees who would be covered by the proposed agreement to bargain together.[28]

• [36] The Full Bench made factual findings under the following headings:

• The fast food industry in Australia
• The McDonald's business in Australia
• McDonald's franchising arrangements
• Co-operative arrangements between franchisees
• McDonald's employees and employment arrangements in South Australia
• Differences between SA Licensees
• History of bargaining with McDonald's
• Attempt by the SDA to re-initiate enterprise bargaining
• Employees' views about enterprise bargaining

• [37] The Full Bench's findings in relation to the fast food industry in Australia, the McDonald's business in Australia, McDonald's franchising arrangements and history of bargaining with McDonald's extend beyond South Australia and potentially apply throughout Australia. The decision records that MAL and its franchisees employ almost 115,000 people in their restaurants and management offices, representing almost half of all employees in the fast food industry.[29] In South Australia, the franchisees employ about 4,500 persons in total, of whom 91 per cent are casual employees.[30]

• [38] In relation to the history of bargaining with McDonald's throughout Australia, this included that from 3 February 2020, the FFI Award applied to McDonald's restaurants operated by MAL and its franchisees and that no enterprise agreement currently applies to any McDonald's restaurant.[31]

• [39] After considering the evidence with respect to the matters in s.243(1)(b), the Full Bench concluded that it is appropriate for the SA Licensees and their employees that will be covered by the multi enterprise agreement proposed by the SDA to bargain together because:

• The prevailing pay and conditions within the fast food industry are at or close to the minimal provided for by the FFI Award, and low rates of pay prevail in the industry.
• The SA Licensees have clearly identifiable common interests of direct relevance to enterprise bargaining.
• It is more probable that not that the likely number of bargaining representatives would be consistent with a manageable collective bargaining process.
• Unless the authorisation sought is granted, the SA Licensees will not engage in bargaining, and as a result their employees will not have access to bargaining.
• Absent the re-engagement of McDonald's businesses in bargaining, the proportion of employees in the fast food industry who are covered by enterprise agreements will remain low.
• Support is required for the SDA and any other employee bargaining representatives in order for the employees to meaningfully engage in the bargaining process.

• • A significant proportion of the employees support engagement in bargaining.[32]

• [40] As the above summary of the SA Decision makes plain, Parliament has vested in the Commission the power to make supported bargaining authorisations. In exercising such powers, the Commission is required to determine the meaning of the provisions, by applying the usual rules of statutory construction. In the SA Decision, a Full Bench of the Commission said that the proper interpretation and application of s.243 in the context of the statutory scheme for supported bargaining was comprehensively considered in the Full Bench decision in Application by United Workers' Union, Australian Education Union and Independent Education Union of Australia and derived a number of propositions from that decision.[33] While the Federal Court is superior to the Commission, it is not the case that the Commission has limited experience in interpreting and applying the legislation which governs its work. Further, Parliament has given the Court no role in making supported bargaining authorisations. This is not a case, like Teys, Metro Trains Melbourne Pty Ltd T/A Metro Trains v Australian Rail, Tram and Bus Industry Union, or MMA, where the Federal Court has the power to determine the dispute between the parties to finality. The relevant applications will still need to be determined by the Commission, regardless of whether the Federal Court finds in favour of the McDonald's Parties in the Federal Court proceeding or otherwise. While the superiority of the Federal Court relative to the Commission was a factor weighing in favour of the grant of a stay in Teys, I believe that this is a matter which carries less weight with respect to the current application given that the Federal Court cannot determine the dispute between the parties to finality.

• [41] A matter related to the superiority of the Court which weighs in favour of the granting of a stay is the risk of inconsistent constructions of s.243 as between the SA licensees impacted by the SA Decision on the one hand, and those franchisees (and MAL) impacted by these proceedings on the other. Further, the McDonald's Parties submit, and I accept, that the Court's determination of the FCA Proceeding will concern important questions concerning essential jurisdictional issues arising in the context of newly enacted provisions which have yet to be considered by a Court. This also weighs in favour of granting a stay.

• [42] I note that the risk of inconsistent decisions was regarded as the most important consideration in favouring a stay in Teys and MMA. Because the Commission would be bound by any decision of the Federal Court in relation to the construction of s.243, the possibility of inconsistent constructions of s.243 affecting the McDonalds Parties and parties to s.243 applications more broadly would be reduced if the stay is granted. However, if a stay is not granted and the relevant applications are determined in a way which is inconsistent with the construction of s.243 determined in the FCA Proceeding, this is a matter which can be corrected by judicial review, although this would involve parties expending further costs and resources both with respect to a judicial review application and potential rehearings of the relevant applications.

• [43] If the FCA Proceeding is not determined in favour of the McDonald's Parties, the principles in the SA Decision will continue to apply. If a stay is granted, the earliest time that the relevant applications will be programmed for hearing is when the FCA Proceeding decision is issued. The McDonald's Parties have not indicated whether they will contest the relevant applications if the FCA Proceedings are not determined in their favour. Assuming that the applications are contested and a 10-week timetable for the filing of evidence and submissions is made, the hearing may take place in August or September 2026 and a decision issued in December 2026 at the earliest. Based on the McDonald's parties' estimation that the Federal Court will issue its decision in June 2026, this will result in a delay of at least six months and probably longer if the Federal Court has not issued its decision by June 2026.

• [44] The McDonald's Parties dispute that their employees need support to bargain and the basis for the issuing of the authorisation covering the SA Licensees. However, I cannot exclude from my consideration that if the FCA Proceeding is unsuccessful, it is likely that the Commission will follow the SA Decision and will make similar factual findings to the Full Bench in that matter if the Commission makes some or all of the authorisations sought. Those findings include that:

• MAL and its franchisees employ almost 115,000 people in their restaurants and management offices, representing almost half of all employees in the fast food industry.
• The FFI Award applies to McDonald's restaurants operated by MAL and its franchisees and no enterprise agreement currently applies to any McDonald's restaurant.
• Unless the authorisation sought is granted, the McDonald's employers will not engage in bargaining, and as a result their employees will not have access to bargaining.
• Absent the re-engagement of McDonald's businesses in bargaining, the proportion of employees in the fast food industry who are covered by enterprise agreements will remain low.

• [45] The effect of the delay is that, if the SA Decision is not disturbed by the Federal Court Proceeding and similar findings are made by the Commission with respect to the relevant applications, a significant number of employees comprising a very large portion of the fast food industry, will have been deprived from accessing bargaining and its associated potential benefits for a considerable period of time.

• [46] If the FCA Proceeding is determined in favour of the McDonald's Parties, the authorisation arising from the SA Decision will be quashed and the application will be remitted to the Commission for rehearing. As a result of that rehearing, the authorisation will either be granted or not granted. Depending upon which grounds the Federal Court upholds, any subsequent decision of the Commission which grants the authorisation may depart in either a significant or minor way from the SA Decision or somewhere in between. Given the range of possible outcomes, it is unknown whether a judicial review application in relation to the relevant applications would automatically follow if authorisations are made and the FCA Proceeding is determined in favour of the McDonald's Parties.

• [47] If the stay is granted, it is uncertain whether the outcome of the FCA Proceeding will have an impact on the SA Decision or the reasoning process for the relevant applications. What is certain, however, is that if the stay is granted, the relevant applications will be delayed.

• [48] If the stay is not granted and the FCA Proceeding is determined in favour of the McDonald's Parties, there is a risk that if authorisations are made arising from any of the relevant applications, that these will be quashed by future judicial review proceedings.

• [49] I have carefully considered the submissions of the parties and all of the relevant circumstances. The importance of the issues raised in the FCA Proceeding and the risk of inconsistent constructions of s.243 as between the SA licensees impacted by the SA Decision on the one hand, and those franchisees and MAL impacted by these proceedings on the other are matters which favour the granting of the stay. However, in my view, these matters are outweighed by the real possibility that a stay will result in a significant delay in a large number of employees being able to access bargaining and that the risk of inconsistent constructions of s.243 can be addressed by judicial review. Although inconsistent constructions of s.243 may result in the parties expending time and effort on judicial review and rehearing proceedings, I believe that this is a minor consideration in the circumstances of this case, when balanced against the other factors I have taken into account.

• [50] For these reasons, I am not satisfied that it is in the interests of justice for the relevant applications to be stayed until the hearing and determination of the FCA Proceeding.

• [51] The application filed by the McDonald's Parties is dismissed.

[1] Application by Shop, Distributive and Allied Employees Association [2025] FWCFB 130

[2] See MMA Offshore Vessel Operations Pty Ltd t/as MMA Offshore v Construction, Forestry and Maritime Employees Union (MMA) [2025] FWC 2409 [7], Re Esso Australia [2018] FWC 6244 [10], Syed Mubashir v Rasier Pacific Pty Ltd, Uber BV, Uber Australia Pty Ltd T/A Uber [2021] FWC 4729 [10]

[3] MMA [2025] FWC 2409 [8]; Pegasus Leasing Limited v Cadoroll Pty Limited (1996) 59 FCR 152 at 156

[4] [2015] FCA 1033

[9] Visy Board Pty Ltd v Rustemovski [2018] FWCFB 1255 [46]-[49] cited in Re Esso Australia [2018] FWC 6244 [15]

[10] [2018] FWC 6244

[11] Re Esso Australia [2018] FWC 6244 [16]

[12] [2017] FWC 4571

[15] [2025] FWC 2409

[21] [2021] FWC 4729 [10]

[22] [2018] FWC 6244

[25] [2023] FWCFB 176

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