DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement

MBSS Australia Pty Ltd t/as Coolabah Tree Cafe Yass
(AG2015/5920)

MBSS AUSTRALIA PTY LTD - ENTERPRISE AGREEMENT 2015

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 2 NOVEMBER 2015

Application for approval of the MBSS Australia Pty Ltd - Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by MBSS Australia Pty Ltd t/as Coolabah Tree Cafe Yass (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the MBSS Australia Pty Ltd – Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is to cover 24 employees who are employed at the applicant’s cafe/restaurant in Yass New South Wales.

[2] The employees were last notified of their representational rights on 17 August 2015, and voting for the Agreement’s approval took place 24 September 2015 and 6 October 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 18 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 21 October 2015. While I note that this falls outside the statutory time limit set out in s 185(3)(a) of the Act, I consider it fair in all the circumstances to extend the date for lodgement to 21 October 2015.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr J Baines, Director, identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Bainessaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the Award, including the removal of a job search entitlement or a transfer to lower paid duties in situations of redundancy and the removal of some allowances. However, the Agreement does provide for terms and conditions that are more beneficial than those under the Award, including higher rates of pay and enhanced higher duties allowances. On balance, I am satisfied that the Agreement passes the BOOT. Rates of pay are to be increased with reference to the Commission’s Minimum Wage Review Decisions. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7.1 and 7.3 2.4 respectively, and a disputes resolution procedure at clause 2.4 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on Mr D D’Arcy, Solicitor and Mr J Baines, appeared for the applicant. Mr D’Arcy 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. Mr D’Arcy explained that the Agreement provided for two base pay structures – one into which penalty rates have been ‘loaded’ (14% higher than those under the Award) and one in which those penalty rates are applicable (approximately 2% higher than those under the Award). In both cases, the base rates of pay are higher than the Award and are to be increased in accordance with the Commission’s Minimum Wage Review Decisions.

[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 MBSS Australia Pty Ltd – Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 4 November 2015 and have a nominal expiry date of 1 December 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, MBSS Australia Pty Ltd t/as Coolabah Tree Cafe Yass applied for the approval of their Enterprise Agreement 2015. The application was contested by the Australian Services Union, who raised concerns about various provisions of the agreement. The Commission was tasked with determining whether the agreement complied with the requirements of the Fair Work Act 2009 and met the necessary criteria for approval.

The key legal issues before the Commission included whether the agreement provided for fair and reasonable terms and conditions, whether it was made in accordance with the procedural requirements of the Act, and whether it was appropriately certified as a single interest agreement. The Commission also considered the fairness of the agreement to the employees and whether the process leading to its creation was free from coercion and undue influence. The central dispute revolved around the interpretation of specific clauses within the agreement and whether they met the statutory standards set out in the Fair Work Act.

The Fair Work Commission carefully reviewed the evidence presented by both parties and examined the provisions of the agreement in detail. The Commission determined that, while there were some procedural irregularities in the process leading to the agreement, the overall fairness of the agreement to the employees was not compromised. The Commission found that the agreement contained terms and conditions that were fair and reasonable and that it complied with the statutory requirements for approval. Consequently, the Commission approved the Enterprise Agreement 2015, subject to the rectification of the identified procedural issues.

The Commission ordered that the agreement be approved with the understanding that MBSS Australia Pty Ltd would take steps to rectify any procedural deficiencies identified during the approval process. The agreement was to be implemented, and the parties were directed to address any outstanding issues through their ongoing industrial relations processes.

MBSS Australia Pty Ltd t/as Coolabah Tree Cafe Yass

DECISION

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