FWAA 8012
Fair Work Act 2009
s.185—Approval of enterprise agreement
MTC TRADING PL AND STAFF ENTERPRISE AGREEMENT 2010
ADELAIDE, 15 OCTOBER 2010
Application for approval of the MTC Trading PL and Staff Enterprise Agreement 2010.
 An application has been made for approval of an enterprise agreement known as the MTC Trading PL and Staff Enterprise Agreement 2010 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by MTC Trading Pty Ltd trading as Michel’s Patisserie Golden Grove. The Agreement is a single-enterprise agreement.
 A conference with a representative of the parties was conducted on 7 September 2010 in order to consider the safety net for the purposes of the application and a number of issues arising from the approval criteria of the Act.
 The employer subsequently provided further clarification of the relevant Award coverage and the parties’ intentions. In addition, the employer proposed a series of formal written undertakings; the relevant parts are set out below:
The employer undertakes THAT:
“1. The casual status of employees will continue and the current rostering model will be maintained.
2. The rates provided for in both schedule 1 and 2 of the agreement are minimum rates which may be improved at the employer’s discretion in addition to wage increases provided for under the agreement.
3. Schedule 2 employees will be offered at least an average of twice as many hours on Saturday than on Sunday and no more than 22% of weekday hours after 6pm on average over the year. This will be reviewed annually and in addition it will be reviewed in the event the current roster changes.
4. If an employee requests and the Company agrees that they primarily work late nights, or Sundays due to their personal circumstances and availability the Company will address this request in accordance with the individual flexibility term of their Agreement.
5. It is understood by the company that, under s.206 of the Fair Work Act 2009, the base rate from the modern award as varied from time to time will operate as a minimum from 1 January 2011.”
 I have sought the views of the bargaining representative and accepted these undertakings pursuant to s.190 of the Act. As a result, the above undertakings are taken to be a term of the Agreement.
 I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.
 In so finding I have applied the terms of the Delicatessens, Canteens, Unlicensed Cafes and Restaurants etc Award (the Delicatessens Award) for the purposes of the Better Off Overall Test established by s.193 of the Act. The Delicatessens Award is a Division 2B Award and is applicable for this purpose as a result of a transfer of business from a non-constitutional corporation to the employer and the operation of s.312 of the Act and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). As a result (Schedule 3A, item 43 and Schedule 7, part 4A item 20A) of the Transitional Act) the otherwise relevant modern award does not apply for the purposes of s. 193 of the Act.
 The base rates of the relevant modern award will however apply as a minimum as from 1 January 2011 and this is reflected in the above undertakings.
 The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 October 2010. The nominal expiry date of the Agreement is 21 October 2014.
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