Vanilla Sky Australia Pty Ltd t/as Coffee Club Mascot

[2016] FWCA 5012

[2016] FWCA 5012

FAIR WORK COMMISSION

DECISION

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

Vanilla Sky Australia Pty Ltd t/as Coffee Club Mascot
(AG2016/1608)

VANILLA SKY AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2016

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 26 JULY 2016

Application for approval of the Vanilla Sky Australia Pty Ltd Enterprise Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Vanilla Sky Australia Pty Ltd t/as Coffee Club Mascot (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Vanilla Sky Australia Pty Ltd Enterprise Agreement 2016 (the ‘Agreement’). The Agreement is to cover ten employees who are engaged at the applicant’s cafe/restaurant in Mascot, New South Wales.

[2] The employees were last notified of their representational rights on 27 May 2016, and voting for the Agreement’s approval took place on 18 June 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 8 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 23 June 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17), Mr L Zhang, 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 Zhangsaid that the Agreement does not provide for penalty rates for work performed on weekends or public holidays, but that these 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 term at cl 23 and consultation terms at clauses 21 and 22 respectively. A disputes resolution procedure at clause 25 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 22 July 2016, Mr D Tracey of Employment Innovationsappeared with Mr L Zhang for the applicant. Mr Tracey 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. He clarified cl 9.3 set out that rates of pay under the Agreement would only be increased if they fell below the base rates in 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 Vanilla Sky Australia Pty Ltd Enterprise Agreement 2016.Pursuant to s 54 of the Act, the Agreement shall operate from 29 July 2016 and have a nominal expiry date of 22 July 2020.

DEPUTY PRESIDENT

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