Mr Luke Thomas

[2017] FWCA 898

[2017] FWCA 898

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Mr Luke Thomas
(AG2016/7566)

MAX BRENNER - VICTORIA - ENTERPRISE AGREEMENT 2009-2013

Fast food industry
COMMISSIONER ROE	MELBOURNE, 14 FEBRUARY 2017

Application for termination of the Max Brenner - Victoria - Enterprise Agreement 2009-2013.

[1] The Application to terminate this Agreement has been made by Mr Thomas an employee covered by the Max Brenner – Victoria – Enterprise Agreement 2009-2013 (the Agreement). The nominal expiry date of the Agreement was 1 November 2013. The Agreement was reached during the bridging period as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

[2] I am satisfied that Mr Thomas is able to make the application and that the pre-requisites for the application as set out in Section 225 are met.

[3] The Application was not opposed by the employer, MB Australia Pty Ltd T/A Max Brenner. If the Agreement is terminated the MB Australia Enterprise Agreement 2016 (MB Australia Agreement) will apply to the employer and the employees. There is no union covered by the Agreement and the AWU is covered by the MB Australia Agreement.

[4] I am satisfied that the MB Australia Agreement will apply because:

a. Section 53(1) of the Act, which provides that an enterprise agreement covers an employee or employer if the agreement is expressed to cover (however described) the employee or the employer; and

b. Clauses 2, 3.1(a) and 3.2 of the 2016 EA, which provides as follows:

“2. PARTIES

The parties to this Agreement are:

2.1. MB Australia Pty Ltd (ABN 74 115 512 993) ("the Employer"); and
2.2. Subject to Clause 3, all employees employed by the Employer in the Job Classifications set out in this Agreement ("the Employees").

3.  EXISTING ENTERPRISE AGREEMENTS

3.1. The Employees exclude all employees to which the following enterprise agreements apply:
(a) The Max Brenner- Victoria- Enterprise Agreement 2009-2013;
…
3.2. If any enterprise agreement in Clause 3.1 is terminated under section 226 of the Act, employees who were covered by that terminated enterprise agreement will be covered by this Agreement.”

[5] I requested that Max Brenner provide all employees affected with a notice that:

• It is proposed to terminate the Agreement and that as a consequence the MB Australia Agreement will apply.
• Outlining the effect on wages and conditions.
• Advising that if an employee has any objection they can email the Fair Work Commission at my Chambers in confidence within seven days of the notice.

[6] Max Brenner provided me with a copy of the notice and information concerning the information sessions provided to employees concerning the effect of the MB Australia Agreement. I received no objection from any employee in response to the notice issued by Max Brenner.

[7] I am required to consider the following matters:

“226  When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a)  the FWC is satisfied that it is not contrary to the public interest to do so; and
(b)  the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i)  the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and
(ii)  the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

[8] I am satisfied that it is not contrary to the public interest to terminate the Agreement. I reach this conclusion because the Agreement now has wages and conditions which disadvantage employees when compared to the Award whilst the MB Australia Agreement has recently been approved by the Fair Work Commission as meeting the BOOT. It is in the public interest that employees have access to wages and conditions which meet the safety net of the modern awards and agreements which meet the BOOT.
[9] I am satisfied that both the employer and employees support the application to terminate the Agreement. I have provided employees with the opportunity to express any concerns they may have and none have been raised. I have taken into consideration the views of the employer and the employees covered by the Agreement and the circumstances of the employer and the employees and the likely effect that the termination will have on them. I am satisfied that the effect of the termination will be to significantly improve overall wages and conditions for employees. There are no organisations which are covered by the Agreement.

[10] Taking into account the factors specified in Section 226(b) I am satisfied that it is appropriate to terminate the Agreement.

[11] I do not consider it necessary to order a ballot or survey of all employees in the circumstances of this case. I am satisfied that employees were aware of the application and were made aware of its effect and they have not generally opposed it.

[12] The bar to be met in determining to terminate an agreement is relatively high. It is higher than the tests required under the previous legislation. However, I am satisfied that in this case the public interest consideration is strongly in favour of the termination of the Agreement.

[13] The requirements of Section 226 having been met the Agreement must be terminated.

[14] I consider it appropriate that the termination operate from the date of this decision.

COMMISSIONER

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