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

Printed by authority of the Commonwealth Government Printer

Venga Pty Ltd, trading as San Churro, applied to the Fair Work Commission for approval of the Chocolateria San Churro Enterprise Agreement 2015. The applicants sought to have the agreement approved under section 232 of the Fair Work Act 2009, with the primary dispute centring on whether the agreement met the necessary criteria for its endorsement by the Commission. The case was heard in the Fair Work Commission, which is tasked with overseeing and approving enterprise agreements to ensure they comply with the statutory requirements set out in the Act.

The legal issues that the Commission was required to address included whether the agreement was made in good faith and whether it met the standards for simplicity, clarity, and accessibility as prescribed by the Act. Furthermore, the Commission had to determine if the agreement provided for a direct and express choice of whether employees would be covered by it. The applicants needed to demonstrate that the agreement was fair and appropriate, taking into account the principles of the Fair Work Act, including the protection of employees' rights and the promotion of productive and harmonious workplace relations.

In reaching its decision, the Commission examined the evidence and submissions provided by the applicants. The Commission found that the agreement met all the necessary criteria for approval. It was concluded that the agreement was made in good faith and was clear, simple, and accessible to the employees. Additionally, the agreement provided for a direct and express choice for employees to be covered by it, which was a critical requirement. The Commission was satisfied that the agreement appropriately balanced the interests of the employer and the employees, and therefore, the application for approval was successful. As a result, the Chocolateria San Churro Enterprise Agreement 2015 was approved by the Commission under the Fair Work Act 2009.

Venga Pty Ltd t/as San Churro

DECISION

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