Venga Pty Ltd t/as San Churro

[2015] FWCA 6652

[2015] FWCA 6652

FAIR WORK COMMISSION

DECISION

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

Venga Pty Ltd t/as San Churro
(AG2015/5482)

CHOCOLATERIA SAN CHURRO ENTERPRISE AGREEMENT 2015

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 29 SEPTEMBER 2015

Application for approval of the Chocolateria San Churro Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Venga Pty ltd t/as San Churro (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Chocolateria San Churro Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is to cover 133 employees who are employed at the applicant’s restaurants in Victoria and Queensland. The Agreement only covers full time and part time employees, as the applicant does not employ any casual employees. 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 1 July 2015 and voting for the Agreement’s approval took place between 26 August and 2 September 2015. The time limits under s 181(2) of the Act are thereby satisfied. In an online ballot, 88 of the 101 employees who cast a valid vote agreed to approve the Agreement. The application for approval of the Agreement was lodged on 11 September 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr G Maurici, Director/Founder identified the Restaurant Industry Award 2010 [MA000119] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Mauricisaid that the Agreement does not for penalty rates for work performed on weekends and public holidays. However, an employee may not be required to work more than a maximum of two five hour penalty rate shifts per week or more than two Sunday shifts per month. The Agreement also provides for rates of pay approximately 27% higher than those under the Award, a reduced span of hours and a more generous meal entitlement. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 41 and 42 respectively, and a disputes resolution procedure at clause 35 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 24 September 2015, Mr S Kollmorgen, Solicitorappeared with Ms C Johnston and Mr G Maurici for the applicant. Mr Kollmorgen 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 explained that while the Agreement does not provide for set wage increases during its nominal term, this was offset by the significant increase to base rates of pay, which were guaranteed not to fall below the minimum rates set out 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 Chocolateria San Churro Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 1 October 2015 and have a nominal expiry date of 30 September 2019.

DEPUTY PRESIDENT

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