The Vivo Palm Cove Hybrid Unit Trust T/A Vivo Palm Cove Pty Ltd

[2015] FWCA 5011

[2015] FWCA 5011

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185—Enterprise agreement

The Vivo Palm Cove Hybrid Unit Trust T/A Vivo Palm Cove Pty Ltd
(AG2015/3945)

VIVO PALM COVE PTY LTD ENTERPRISE BARGAINING AGREEMENT 2015

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 24 JULY 2015

Application for approval of the Vivo Palm Cove Pty Ltd Enterprise Bargaining Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by The Vivo Palm Cove Hybrid Unit Trust t/a Vivo Palm Cove Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Vivo Palm Cove Pty Ltd Enterprise Bargaining Agreement 2015 (the ‘Agreement’). The Agreement is to cover 40 employees who are engaged at the applicant’s restaurant in Palm Cove, Queensland. 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 28 April 2015, and voting for the Agreement’s approval took place between 17 June 2015 and 6 July 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 35 of the employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 14 July 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr G Sherr, Director, identified the Restaurant Industry Award 2010 as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Sherrsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instrument, including the removal of penalty rates for work performed on weekends and public holidays, and a number of allowances. However, the Agreement provides for a higher flat rate of pay than the reference instrument, and employee’s shifts would be rotated. He said that under the Agreement staff would have the ability to work additional hours at a supplementary rate. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7.1 and 7.3 respectively, and a disputes resolution procedure at clause 2.4 provides for conciliation by the Commission.

[4] At a hearing of the application on 22 July 2015, Ms P Kitto appeared with Ms
T Sabiani for the applicant. Ms Kitto 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 the new flat rates of pay are 12.5% higher than the comparable Modern Award and that, even taking into account the non-payment of penalty rates, the employees are better off under the Agreement. She added that the employees preferred the prospects of moving from casual to part time employment. Ms Kitto further submitted that the rates of pay are to be increased by 2.5% on 1 July 2016, 1 July 2017 and 1 July 2018.

[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 Vivo Palm Cove Pty Ltd Enterprise Bargaining Agreement 2015. Pursuant to s 54 of the Act, the Agreement shall operate from 29 July 2015 and have a nominal expiry date of 30 June 2019.

DEPUTY PRESIDENT

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