Blu Lion Pty Ltd t/as Australiana Charters

[2015] FWCA 5404

[2015] FWCA 5404

FAIR WORK COMMISSION

DECISION

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

Blu Lion Pty Ltd t/as Australiana Charters
(AG2015/4080)

AUSTRALIANA CHARTERS ENTERPRISE AGREEMENT

Marine tourism and charter vessels
DEPUTY PRESIDENT SAMS	SYDNEY, 10 AUGUST 2015

Application for approval of the Australiana Charters Enterprise Agreement.

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

[2] The employees were last notified of their representational rights on 5 June 2015 and voting for the Agreement’s approval took place on 11 July 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 23 July 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms H Kynoch, Manager, did not identify any instrument as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’), though I am satisfied that the Marine Tourism and Charter Vessels Award 2010 [MA000093] is the appropriate comparative instrument. Ms Kynoch said thatdaily rates of pay are rounded up to the nearest dollar 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 6.4 respectively, and a disputes resolution procedure at clause 6.4 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 4 August 2015, Mr D Tuxworth of Livingstones Employment Relationship Advisors,appeared with Ms H Kynoch 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. Ms Kynoch explained that an additional benefit set out under the Agreement was the qualified right for employees to take home fish they catch 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 Australiana Charters Enterprise Agreement.Pursuant to s 54 of the Act, the Agreement shall operate from 11 August 2015 and have a nominal expiry date of 10 August 2019.

DEPUTY PRESIDENT

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