Rydaba Pty Ltd ATF Oak Tree Unit Trust T/A Vapiano

[2016] FWCA 4845

[2016] FWCA 4845

FAIR WORK COMMISSION

DECISION

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

Rydaba Pty Ltd ATF Oak Tree Unit Trust T/A Vapiano
(AG2016/1237)

VAPIANO ENTERPRISE AGREEMENT 2016

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 22 JULY 2016

Application for approval of the Vapiano Enterprise Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Rydalba Pty Ltd ATF Oak Tree Unit Trust t/as Vapiano (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Vapiano Enterprise Agreement 2016 (the ‘Agreement’). The Agreement is to cover 277 employees, other than managerial employees, who are employed at restaurants in Sydney, Melbourne and Brisbane.

[2] The employees were last notified of their representational rights on 15 March 2016, and voting for the Agreement’s approval took place on 2 and 3 May 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 87 of the 148 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 17 May 2016, thereby satisfying s 185(3) of the Act.

[3] The applicant relied on three Employer’s Declarations in support of the application (Form F17), one for each of three corporate entities and completed by Mr G Dunn in his capacity as Director. Mr Dunn identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). In each declaration, Mr Dunnsaid that the Agreement does not provide for penalty rates for work performed on weekends and public holidays, but that these rates have been ‘loaded’ into higher base rates of pay. On balance, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 40 and 41 respectively, and a disputes resolution procedure at clause 33 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 11 July 2016, Ms L Anaf, Solicitorappeared with Mr G Dunn and Mr W Cook for the applicant. Ms Anaf 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. She explained that rates of pay were 15-20% higher than those under the Award.

[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 Vapiano Enterprise Agreement 2016.Pursuant to s 54 of the Act, the Agreement shall operate from 18 July 2016 and have a nominal expiry date of 11 July 2020.

DEPUTY PRESIDENT

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