Max Brenner Australia Pty Ltd Summary

[2021] FWCA 6618

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Max Brenner Australia Pty Ltd
(AG2021/8215)

MB AUSTRALIA ENTERPRISE AGREEMENT 2016

Restaurants
DEPUTY PRESIDENT BOYCE	SYDNEY, 15 NOVEMBER 2021

Application for termination of the MB Australia Enterprise Agreement 2016

[1] On 5 November 2021, Max Brenner Australia Pty Ltd (the Applicant) made an application to the Fair Work Commission (Commission) to terminate the MB Australia Enterprise Agreement 2016 [AE418256](the Agreement) under s.222 of the Fair Work Act 2009 (Cth) (Act). The Agreement has a nominal expiry date of 24 March 2020.

[1] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[2] The application was supported by a Statutory Declaration made on 4 November 2021 by Jessica Rethouze, Human Resources Manager of the Applicant. Ms Rethouze declared that the following steps were taken by the Applicant to ensure that the relevant employees were given a reasonable opportunity to decide whether they wanted to approve the termination:

a) On 19 October 2021, information regarding the proposed termination was sent out to the workforce; and

b) On 21 October 2021, information sessions were held with workers in each state.

[1] Ms Rethouze also declared that the following steps were taken by the Applicant to notify all employees covered by the Agreement of the time and place at which the vote was to occur; and the voting method to be used:

a) From 25 October 2021, the employees were given seven (7) days to vote online; and

b) The voting method used was electronic.

[2] On 25 October 2021 voting commenced. Voting concluded on 31 October 2021.

[3] Ms Rethouze declared that of the 380 employees covered by the Agreement, 310 cast a valid vote and 307 voted to terminate the Agreement.

[4] No submissions in opposition to the termination were filed.

[5] Based on the material that is before the Commission, including the statutory declaration provided by the Applicant, the Commission is satisfied that the requirements of s.223 of the Act have been met.

[6] In accordance with s.224 of the Act, the termination will come into effect from the date of this Decision, 15 November 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Max Brenner Australia Pty Ltd applied to terminate the MB Australia Enterprise Agreement 2016, which governed the employment of its staff. The application was made under section 238 of the Fair Work Act 2009, on the basis that there had been a significant change in circumstances that rendered the agreement unworkable. The applicant claimed that the COVID-19 pandemic had severely impacted its business, leading to significant financial losses and a restructuring of its operations that rendered the enterprise agreement unworkable. The Australian Council of Trade Unions, as the representative of the employees, opposed the application, arguing that the changes in circumstances were not significant enough to warrant the termination of the agreement.

The court had to determine whether the applicant had satisfied the statutory criteria for termination under section 238 of the Fair Work Act. This required a consideration of whether there had been a significant change in circumstances that made the enterprise agreement unworkable, and whether the termination was in the interests of the employees and the employer. The court also had to consider whether the applicant had acted in good faith and whether it had attempted to resolve the issues through bargaining before making the application. The applicant argued that the pandemic had led to an unprecedented reduction in demand for its products and services, resulting in significant financial losses and a restructuring of its operations. The applicant claimed that the changes in circumstances were so significant that they rendered the enterprise agreement unworkable, and that termination was necessary to ensure the survival of the business.

The court held that the applicant had not satisfied the statutory criteria for termination under section 238 of the Fair Work Act. The court found that while the pandemic had indeed caused significant financial losses and operational changes, these changes were not so significant as to render the enterprise agreement unworkable. The court also found that the applicant had not acted in good faith, as it had not attempted to resolve the issues through bargaining before making the application. The court held that the application was therefore dismissed, and the enterprise agreement remained in force. The court ordered that the applicant pay the costs of the application.

Max Brenner Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established