Veronesi Holdings Pty Ltd as trustee for Veronesi Holdings Trust T/A Guzman Y Gomez

[2013] FWCA 1398

[2013] FWCA 1398

FAIR WORK COMMISSION

DECISION

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

Veronesi Holdings Pty Ltd as trustee for Veronesi Holdings Trust T/A Guzman Y Gomez
(AG2013/5276)

VERONESI HOLDINGS ENTERPRISE AGREEMENT 2013

Fast food industry
DEPUTY PRESIDENT SAMS	SYDNEY, 12 MARCH 2013

Application for approval of the Veronesi Holdings Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Veronesi Holdings Pty Ltd, as trustee for Veronesi Holdings Trust (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Veronesi Holdings Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 33 employees who are employed at the applicant’s two Mexican fast food restaurants in Crows Nest and North Sydney, New South Wales. The two restaurants are operated by applicant on a franchisee basis and are commonly known as ‘Guzman Y Gomez’.

[2] The employees were last notified of their representational rights on 7 January 2013, and voting for the Agreement’s approval took place on 15 February 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 13 of the 14 employees who voted agreed to approve the Agreement. The application for approval of the Agreement was lodged on 27 February 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr A Veronesi, Director, identified the Fast Food Industries Award 2010 [MA000003] and the Shop Employees (State) Award [AN120499] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Veronesisaid that the Agreement does provide for some terms and conditions that are less beneficial than those contained in the relevant Awards, including the removal of penalty rates for work performed on Saturdays, Sundays and Public Holidays and Annual Leave loading. It was said that these benefits have been factored into a higher base rate of pay. The Agreement also provides for a minimum shift engagement, by agreement between the employer and employee, of 1 hour. However, the Agreement also provides for a number of terms and conditions in excess of those in the Awards, including higher base rates of pay, increased pay rates for employees performing higher duties and meal discounts. It was also said that another benefit was the ability to request a paid 15 minute break rather than an unpaid 30 minute break where an employee works a shift shorter than six hours. The Agreement incorporates undertakings accepted in a related agreement by Gay C in Guzman Y Gomez Leasing Pty Ltd and others [2012] FWAA 9443. The Agreement provides for the mandatory flexibility and consultation terms at clauses 5 and 7 respectively, and a disputes resolution procedure at clause 6 provides for conciliation and arbitration, with the consent of the parties to the dispute, by the Commission.

[4] At a hearing of the application on 7 March 2013, Mr C Ni, Solicitor,appeared for the applicant with Mr A Veronesi, Director of the applicant. Mr Ni 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 FWA. He explained that the Agreement allowed for two minimum wage options. Option A is effectively a flat rate structure into which the penalty rates are loaded into a higher base rate of pay. Option B has a lower base rate of pay, but incorporates more of the entitlements to penalty rates and allowances under the Award. Mr Ni said the Agreement allows the employer to designate which Option is to apply to individual employees. While Mr Ni conceded that the employer would choose the option that was cheaper for it on the basis of shift structure, he noted that both options resulted in the employee being better off overall. It was said that the Agreement’s terms were similar to another Agreement in the fast food industry approved by Kaufman SDP in Independent Purchasing Company (Australasia) Ltd [2012] FWAA 3467, in which there are six wage structuring options which the employer may use to engage an employee (I note that this Agreement also provided for a minimum 1 hour engaged by agreement). Despite some reservations, I am satisfied that the Agreement passes the BOOT.

[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 Veronesi Holdings Enterprise Agreement 2013. Pursuant to s 54 of the Act, the Agreement shall operate from 14 March 2013 and have a nominal expiry date of 13 March 2017.

DEPUTY PRESIDENT

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