Australian Pacific Touring Pty Ltd t/as Australian Pacific Touring (APT)

[2014] FWCA 5794

[2014] FWCA 5794

FAIR WORK COMMISSION

DECISION

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

Australian Pacific Touring Pty Ltd t/as Australian Pacific Touring (APT)
(AG2014/6904)

AUSTRALIAN PACIFIC TOURING (APT) TOUR GUIDES ENTERPRISE AGREEMENT 2014

Tourism industry
DEPUTY PRESIDENT SAMS	SYDNEY, 22 AUGUST 2014

Application for approval of the Australian Pacific Touring (APT) Tour Guides Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Australian Pacific Touring Pty Ltd t/as Australian Pacific Touring (APT) (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Australian Pacific Touring (APT) Tour Guides Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with 13 Employee Bargaining Representatives and is to cover 19 employees who are engaged in providing the Kimberley Wilderness Adventure and Outback Wilderness Adventure Touring Programs. 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 28 February 2013, and voting for the Agreement’s approval took place 7 February and 3 March 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for approval of the Agreement, all 15 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 8 July 2014. While this is outside the statutory time period contemplated in s 185(3)(a) of the Act, I understand that the employees have been paid in accordance with the Agreement since its approval. I consider it fair in all the circumstances to extend the period for lodgement to 8 July 2014 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Mr A Smith, General Manager Human Resources did not identify any Award as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). At a hearing of the application on 20 August 2014, Ms C Disher appearing with Mr Smith for the applicant advised that there had been some historic dispute as to the relevant Modern Award and that whichever Award were chosen, the rates of pay are well in excess of any equivalent Award classification. Ms Disher 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. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 29 and 26 respectively, and a disputes resolution procedure at clause 6 provides for conciliation and arbitration by the Commission. 12 of the Employee Bargaining Representatives had filed Declarations in relation to the application (Form F18A) supporting the approval of the Agreement.

[4] 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 Australian Pacific Touring (APT) Tour Guides Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 27 August 2014 and have a nominal expiry date of 26 August 2018.

DEPUTY PRESIDENT

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