MB Australia Pty Ltd

[2016] FWCA 1710

[2016] FWCA 1710

DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement
MB Australia Pty Ltd T/A Max Brenner Australia
(AG2016/2370)
MB AUSTRALIA ENTERPRISE AGREEMENT 2016
Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 18 MARCH 2016

Application for approval of the MB Australia Enterprise Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed

by MB Australia Pty Ltd T/A Max Brenner Australia (the ‘applicant’) which seeks the

approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement

to be known as the MB Australia Enterprise Agreement 2016 (the ‘Agreement’). The

Agreement is to cover 270 employees who are engaged at the applicant’s restaurants in all

States and Territories across Australia, except for Victoria, New South Wales and the

Australian Capital Territory. The Agreement also does not cover head office employees. For

the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered

by this Agreement has been fairly chosen.

[2]        The employees were last notified of their representational rights on 27 November

2015, and voting for the Agreement’s approval took place on 12 February 2016. The time

limits under s 181(2) of the Act are thereby satisfied. In an electronic ballot, 163 of the 213

employees who cast a valid vote, agreed to approve the Agreement. The application for

approval of the Agreement was lodged on 22 February 2016, thereby satisfying s 185(3) of

the Act.

[3]        In the Employer’s Declaration in support of the application (Form F17) Ms N Erez-

Rein, National HR Manager, identified the Restaurant Industry Award 2010 [MA000119] as

[2016] FWCA 1710

the relevant reference instrument for the purposes of the Better Off Overall Test (the

‘BOOT’). Ms Erez-Rein said that the Agreement does provide for some terms and conditions

that are less beneficial than those under the Award in that the Agreement does not provide for

penalty rates for late work or work performed on weekends and provides for reduced penalty

rates for public holidays. However, these have been ‘loaded’ into higher base rates of pay.

The Agreement also provides for enhanced meal break entitlements, a free meal valued up to

$20 for each meal break and a birthday bonus for employees with at least 12 months’

continuous service of 7.5 hours pay. I am satisfied that the Agreement passes the BOOT. The

Agreement provides for the mandatory flexibility and consultation terms at clauses 6 and 15

respectively, and a disputes resolution procedure at clause 7 provides for mediation and

consent arbitration by the Commission.

[4]        At a hearing of the application on 17 March 2016, Mr C Ni, Solicitor, appeared with

Ms N Erez-Rein and Ms Y Kaminski for the applicant. Mr Ni outlined the main features of the

Agreement and submitted that all of the legislative requirements for approval of the

Agreement have been satisfied and the Agreement should be approved by the Commission He

explained that while the Agreement does not provide for increases to base rates of pay over

the nominal term of the Agreement, the higher base rates of pay took this into account. He

also provided calculations based on indicative rosters setting out that the employees were

better off under the Agreement. The Australian Workers’ Union did not appear, but had filed

a Declaration in relation to the application (Form 18) giving notice that it wishes to be

covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the

Union is to be covered by the Agreement.

[2016] FWCA 1710

[5]        Having heard the applicant’s submissions and upon reviewing the terms of the

preapproval process documentation and the Agreement itself, I am satisfied that all of the

requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this

application, have been met. Accordingly, I approve a single enterprise agreement known as

the MB Australia Enterprise Agreement 2016. Pursuant to s 54 of the Act, the Agreement

shall operate from 25 March 2016 and have a nominal expiry date of 24 March 2020.

DEPUTY PRESIDENT

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