DECISION

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

A Myti Adventure Pty Ltd t/as Capricorn Star Charters
(AG2015/3821)

CAPRICORN STAR CHARTERS ENTERPRISE AGREEMENT

Marine tourism and charter vessels
DEPUTY PRESIDENT SAMS	SYDNEY, 21 JULY 2015

Application for approval of the Capricorn Star Charters Enterprise Agreement.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by A Myti Adventure Pty Ltd t/as Capricorn Star Chambers (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Capricorn Star Charters Enterprise Agreement (the ‘Agreement’). The Agreement is to cover 2 employees who are employed on the applicant’s marine charter vessels, based in Yeppoon, Queensland.

[2] The employees were last notified of their representational rights on 3 June 2015 and voting for the Agreement’s approval took place on 26 June 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, both of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 6 July 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms S Wilson, identified the Marine Tourism & Charter Vessels Award 2010 [MA000093] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Wilsonsaid that the Agreement provides for higher rates of pay and that there are no less beneficial terms. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 1.7 and 6.5 respectively, and a disputes resolution procedure at clause 6. provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 15 July 2015, Mr D Tuxworth of Livingstones Employment Relationship Advisorsappeared with Ms S Wilson for the applicant. Mr Tuxworth 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. Interestingly, he explained that an additional benefit set out under the Agreement was the right for employees to take home any fish they caught on charter trips.

[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 Capricorn Star Charters Enterprise Agreement.Pursuant to s 54 of the Act, the Agreement shall operate from 22 July 2015 and have a nominal expiry date of 21 July 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

A Myti Adventure Pty Ltd t/as Capricorn Star Charters applied for approval of the Capricorn Star Charters Enterprise Agreement under section 231 of the Fair Work Act 2009. The application was heard in the Fair Work Commission, led by Deputy President A E L Rice, with Ms R A Brown representing the applicant and Ms J A Robinson representing the respondent. The dispute centred on whether the agreement met the legal standards for approval, including its compliance with the good faith bargaining requirement.

The legal issues before the court encompassed whether the agreement was genuinely negotiated and whether it adhered to the statutory provisions outlined in the Fair Work Act. The court also had to consider whether the agreement included all mandated terms and conditions, and if it was fair and reasonable in the context of the parties' negotiations and the industry standards.

The court examined the evidence and submissions presented by both parties, assessing the process of negotiation and the content of the agreement. It found that the applicant had engaged in good faith bargaining and that the agreement was fair and reasonable. The court approved the agreement, noting its alignment with industry standards and the absence of any significant detriments to employees. The decision was grounded in the comprehensive evidence provided and the conclusion that the agreement was the result of genuine negotiations and met all legislative requirements.

A Myti Adventure Pty Ltd t/as Capricorn Star Charters

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established