Bruce Jenkins v Captain Cook Cruises Pty Ltd

[2014] FWC 6321

[2014] FWC 6321

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 236 - Application for a majority support determination

Bruce Jenkins
v
Captain Cook Cruises Pty Ltd
(B2014/843)

DEPUTY PRESIDENT SAMS SYDNEY, 11 SEPTEMBER 2014

Application for a majority support determination - ss 236 and 237 of the Fair Work Act 2009 - agreement sought to cover ‘Marine Crew’ only - whether group of employees fairly chosen - whether geographically, operationally or organisationally distinct - evidence of respondent preferred - group of employees not fairly chosen - unreasonable to make majority support determination - application dismissed.

INTRODUCTION

[1] On 2 June 2014, Mr Bruce Jenkins (the ‘applicant’), having nominated himself as an Employee Bargaining Representative (EBR) for the negotiation of a new Agreement for ‘Marine Crew’ employed by Captain Cook Cruises Pty Ltd (the ‘respondent’), filed an application seeking a majority support determination, pursuant to s 236 of the Fair Work Act 2009 (the ‘Act’).

[2] A conciliation conference was held by the Commission, as presently constituted, on 26 June 2014. However, no agreement on the application could be reached and the matter was listed for hearing with directions issued accordingly.

[3] At the hearing, Mr Jenkins appeared for himself, Ms A Svetcova appeared in her capacity as an EBR and Mr J Fallone from the Australian Institute of Marine and Power Engineers (AIMPE) was granted limited intervention to make short submissions, having filed no evidence in the matter. Despite Mr Jenkins’ objections, Mr D Mahendra of Counsel was granted permission to appear pursuant to s 596(2) of the Act. I should note that Mr Jenkins’ pleas of being disadvantaged because he is not a lawyer ‘ring rather hollow’ considering his long history of representing himself in this Commission, other Courts and Tribunals. He also acknowledged he had studied law, but had not completed his degree. In any event, I was satisfied that, given the novel and largely untested waters covered by this application, that the matter would be dealt with more efficiently, if the respondent was granted permission to be represented by a lawyer.

CURRENT AGREEMENT

[4] All of the employees are engaged by Captain Cook Cruises NSW Pty Ltd and Quay Cruises Pty Ltd t/as Matilda Cruises. For convenience, I shall hereinafter refer to the employer as the respondent or Captain Cook Cruises. The existing Agreement, the Matilda Cruises and Captain Cook Cruises Employee Collective Agreement 2009 [AC324844] (the ‘Agreement’) has a nominal expiry date of 14 June 2014. The preamble to the Agreement is expressed as follows:

‘Captain Cook Cruises is a business directed at providing a variety of products and services that allow people to access the Harbour and its waterways in a variety of ways. We provide the opportunity for people to experience leisure, site seeing [sic], hospitality, educational and transport activities on Sydney’s waterways.

Our vision is to create a company, which is respected by its staff, customers, competitors and owners. We recognise that we are in a service industry and to deliver our services, we rely on staff to provide high levels of customer service. We aim to create a working environment, which is energetic, innovative and ethical.’

[5] The classifications under the Agreement are recorded at cl 4.1 as follows:

• Master Syd2000/CCE;



• Master IV;



• Master V;



• Engineer Syd2000;



• Engineer All vessels;



• Coxswain;



• Deck Hand GP (general purpose hand);



• Chef;



• Cook;



• Grill cook;



• Kitchen Hand/Stores;



• Cruise Director;



• Cruise Supervisor;



• Steward/Waitstaff;



• Commentator;



• Shoreside Engineer/trade



• General Hand (unqualified);



• General Hand/Painter (unqualified); and



• Cashier.

[6] The applicant in these proceedings seeks to commence bargaining for a new agreement to cover the first seven classifications above, which he categorises as the ‘Marine Crew’.

[7] The interpretation of the classifications is found at cl 4.11, as expressed below:

Master IV	Means an employee being a skipper who is employed by the Employer under the classification of Master IV skipper who has the relevant qualification and experience required to perform the duties.
Master V	Means an employee being a skipper who is employed by the Employer under the classification of Master V skipper who has the relevant qualification and experience required to perform the duties.
Coxswain	Means an employee who is employed by the Employer under the classification of Coxswain who has the relevant qualification and experience required to perform the duties.
Deckhand/General Purpose Hand	Means an employee who is employed by the Employer under the classification of Deckhand or General Purpose Hand who has the relevant qualification and experience required to perform the duties. Deckhands on Charter Vessels and Scheduled Cruises are required to work actively in the area of hospitality and to assist the Cruise Director when not required to perform duties as directed by the Master.
Chef	Means an employee who is employed by the Employer under the classification of Chef who has the relevant qualification and experience to perform the duties;
Cook	Means an employee who is employed by the Employer under the classification of Cook who has the relevant skills and experience required to perform the duties.
Grill Cook	Means an employee who is employed by the Employer under the classification of Grill Cook who has the relevant skills and experience required to perform the duties.
Kitchen Hand	Means an employee who is employed by the Employer under the classification of Galleyhand who has the relevant qualification and experience required to perform the duties.
Cruise Director	Means an employee who is employed by the Employer under the classification of Cruise Director who has the relevant qualifications and experience required to perform the duties. At the discretion of management Cruise Directors will be required to act as an approved manager under the liquor license by Captain Cook Cruises Pty Ltd. As required and as necessary, a nominated Cruise Director will need to complete a Liquor Administration Board approved licensees’ course.
Stewards/Wait staff	Means an employee who is employed by the Employer under the classification of Steward / Waiter/ Waitress who has the relevant qualification and experience required to perform the duties.
Commentator	Means an employee who is employed by the Employer under the classification of Commentator who has the relevant skills and experience required to perform the duties.
Overnight Accommodated Cruise Vessel	Means a vessel engaged wholly or principally within the limits of bays, harbours and rivers, which cruises for one or more days and provides accommodation and hotel style services for passengers and accommodation for crew.

THE EVIDENCE

[8] Written and oral evidence was given in the proceeding by:

• The applicant;



• Ms Adriana Svecova, EBR, employed as a Master V by the respondent; and



• Mr Anthony Haworth, General Manager of the respondent.

Mr Bruce Jenkins

[9] In his first written statement, Mr Jenkins explained that he is one of 57 ‘Marine Crew’, which he defined as the Masters, Engineers and Deck Hands. He had appointed himself as an EBR in his capacity as an employee of the respondent. The total workforce of the respondent in Sydney was 250 employees.

[10] Mr Jenkins claimed that 47 of the 57 ‘Marine Crew’ had sought to commence bargaining for a new agreement following the nominal expiry of the Agreement on 14 June 2014. 34 of the ‘Marine Crew’ employees had appointed Ms Svecova as their EBR. A further three ‘Marine Crew’ supported commencing bargaining with the respondent, but were reluctant to formally appoint a bargaining representative as they had concerns the respondent would take reprisals against them for doing so.

[11] Mr Jenkins deposed that he and Ms Svecova had had five meetings with Mr Haworth since 7 April 2014 seeking the agreement of the respondent to commence bargaining. At the last of these meetings on 26 May 2014, Mr Jenkins delivered a letter to Mr Haworth, which set out the intention of Ms Svecova and himself to commence bargaining with the respondent for a new enterprise agreement before 19 June 2014. He requested that the respondent send a Notice of Representational Rights to the employees. Mr Jenkins set out the perceived deficiencies of the existing enterprise agreement as follows:

‘1. the 2009 Collective Agreement is what is known as an ‘agreement-based transitional instrument’ in force before the commencement of the Fair Work Act 2009, as such it cannot be changed or varied except to remove ambiguity.’

2. Amendments to employee pay, terms and conditions that have occurred since 2009 such as changes to rates or pay [sic], changes to allowances and amendment to increase provisions amount to purported variations of the old agreement.

3. There have been significant changes to legislation since the drafting of the old agreement as such the old agreement is in parts variously unclear, ineffective and or invalid.

4. The current employer entity Captain Cook Cruises Pty Ltd (ABN 1700827302) is not a party to the old collective agreement which listed employers are Tunsa Pty Ltd (ABN 63 001 364 487) formerly Captain Cook Cruises (NSW) Pty Ltd and Rinuba Pty Ltd (ABN 34 002 658 764) trading as Matilda Cruises, formerly Quay Cruises Pty Ltd trading as Matilda Cruises.’

The letter further set out the terms and conditions which were sought in the proposed agreement. These were:

‘1. an improvement to pay as a base for a new agreement for the next four years;

a. what is sought is an increase on the offer made by CCC;

b. Marine Crew will compromise on its requested rates;

c. Those employees on a rate of pay higher than the minimum rate of pay in the new agreement should receive a rateable increase referable to their position and the agreed increase in the minimum rate of pay for that position.

2. Insertion in the new agreement some improvement to conditions;

a. What is in mind is minor variation to pay some allowance for very long days;

b. Perhaps other reasonable minor reasonable [sic] improvements to conditions.

3. annual increase provision amendment;

a. An annual increase provision of 4% is sought to the four year term of the new enterprise agreement;

b. Marine Crew are minded to compromise at a rate less that, perhaps 3.25% to encourage a prompt agreement between the parties.

4. Insertion into the new agreement conditions we are now paid but are not documented;

a. Such as ½ hour travel time for different starting and finishing sites;

b. Variations to pay and conditions for HCF and offshore work;

c. Other conditions currently enjoyed that are not documented in the old agreement.

5. back pay for underpayments under the old ECA;

a. it is noted the company has agreed to back pay;

b. back pay for unpaid meal allowances is sought by Marine Crew;

c. Marine Crew are minded to compromise and limit the claim for back pay for unpaid meal allowance from 1 December 2013 to encourage a prompt agreement between the parties.

6. Provision for bargaining for a new 2018 agreement to commence on or before the date 3 months prior to the expiry date of the new agreement.’

He gave a deadline for the respondent to reply by 28 May 2014.

[12] Mr Jenkins said that in response, Mr Howarth circulated a memo to employees on 2 June 2014 in the following terms:

‘Dear All,

Some of our employees have been generating rumours and at times, inaccurate information about our employment arrangements. I want to use this opportunity to tell all of you the plain truth:

The current Certified Agreement has a nominal expiry date of 16th June 2014 but continues to apply until it is either terminated by one of the parties or replaced with another document.

We can advise that the company intends to stick with the current agreement rather than terminate it or replace it because we believe it offers fair working arrangements for both employee and employer.

As we’ve already indicated, the pay rise scheduled for April next year will be brought forward to the first pay week of January 2015.

We have just undertaken a competitive salary review of similar operators in Sydney Harbour and Captain Cook is paying either at or near the top of the market. Anyone who says we are paying low is quite frankly not telling the truth. And because we wish to ensure we have the best team working here, we will continue to make every effort to achieve wage levels that are at or near the top of the market.

The bottom line is this: we have a great business and a terrific team who make it both successful and a wonderful place to work. That’s why we pay the wages that we do. I am not going to allow a small group of individuals to talk the place down and damage the business; simple as that.

If you have any questions at all in relation to this please don’t hesitate to contact myself, Duc Tran, Henry Tsang, Tony Zrilic, David Garret or David Santarelli.’

[13] Mr Jenkins responded on the same day with his own memo, forwarded to all of the Sydney Vessels Crew. It set out that he was unaware of any inaccurate information circulated to the employees and noted that Mr Haworth had not particularised this allegation. It claimed that there was a possibility that the current Agreement’s nominal expiry date was 14 June 2014, but he had not been able to establish, through his queries to the Commission and the Fair Work Ombudsman (FWO) whether the Agreement was registered. He relied on the reasons he had set out in the letter of 26 May 2014 (see para [11]) for a new enterprise agreement to be negotiated with ‘Marine Crew’ and denied that the respondent’s rates of pay were ‘at the top of the market.’ The letter also expressed dissatisfaction with Mr Haworth’s characterisation of himself and the other employees seeking to enter bargaining with the respondent as ‘talking the place down and damaging the business’ and said that the failure of the respondent to enter into bargaining was ‘regrettable but not unexpected’. He expressed his intention to apply to the Commission for orders to commence bargaining.

[14] In a further written statement, Mr Jenkins claimed that there were some inaccuracies in relation to Mr Haworth’s description of the respondent’s operations. In particular, the listing of employees was out of date and included a number of employees no longer employed by the respondent. It did not appropriately identify employees by their relevant department. It incorrectly attempted to link ‘Marine Crew’ with hospitality and other staff.

[15] Mr Jenkins acknowledged that the nature of the respondent’s business was in the provision of a customer experience or service, but emphasised that the ‘Marine Crew’s’ responsibilities were for the navigation and operation of the vessels; their primary function was to ensure the safety of customers and the respondent’s vessels. The ‘Marine Crew’ sought a separate enterprise agreement due to the separate and discrete circumstances of their duties.

[16] Mr Jenkins noted that the respondent did not recognise a group of employees known as ‘Marine Crew’, but did recognise the ‘Vessel Crew’, meaning the ‘Marine Crew’ with the addition of six employees who work as on-board commentators.

[17] Mr Jenkins denied that there was any basis for the respondent’s claim that operating under four enterprise agreements (rather than three) would lead to a diminution in customer service, guest experience, efficiency or employee ‘happiness’. He provided the example of the Quicksilver Connections AMOU & AIMPE Marine Agreement 2014-2018 [AE407354] (the ‘Quicksilver Agreement’) as an Agreement covering a business of a similar size which had a separate enterprise agreement for its ‘Marine Crew’.

[18] Mr Jenkins said that the ‘Marine Crew’ had made a claim in relation to a pay increase and that the respondent had made a counter-offer, which was rejected by the ‘Marine Crew’ and was subsequently withdrawn by the respondent. He noted that the respondent had made offers to individual ‘Marine Crew’ employees to vary the terms of their employment and offer a levy for work performed for Harbour City Ferries and for working on offshore services, such as whale-watching.

[19] Mr Jenkins provided an indicative organisational chart as follows, which he claimed demonstrated the distinction between the ‘Marine Crew’ and the hospitality crew:

[20] In cross examination, Mr Jenkins was shown an email sent on 19 November 2013, which he agreed was effectively his job application. It was expressed as follows:

‘Hi Tony

I write in response to your advertisement seeking skippers for Captain Cook Cruises. I hold Master <24m NC and MED 3 NC.

I am 56 years old (DOB 11.09.57), I am currently doing ad hoc charter work on Sydney Harbour for various operators. I have extensive experience in waters along the eastern coast from Lizard Island, Queensland in the north to Geelong Victoria in the south. I have been across the entire length of the Great Barrier Reef from Lady Elliot Island to Lizard Island. I have owned tourist charter vessels operating out of Cairns and Southport from 12-36 metres in length. I certainly have an understanding of the requirements of a charter skipper.

I look forward to the opportunity to discuss the opportunity to work with CCC. My contacts are: [supplied]’

[21] Mr Jenkins clarified that he had started doing ad hoc charter work in Sydney Harbour in November 2013 for a company called East Coast Sailing and another company (the name of which he could not recall). His experience along the East coast was on private vessels, rather than on commercial vessels. He had not worked as a Captain when he had owned a tourist charter vessel in the 1980s and 1990s. He had obtained commercial qualifications in 2003 and accepted that prior to November 2013, he had no commercial marine tourist experience as a Skipper. The experience as a Skipper he had referred to was in a private capacity and his being onboard commercial boats, but not as a Skipper. His ad hoc experience, prior to getting his commercial qualifications full time, was between 2 and 10 hours per week. He did not accept that the above email had embellished his experience as a Captain or his experience in marine tourism.

[22] Mr Jenkins agreed he had been the subject of a criminal case brought by the Victorian Police in relation to businesses previously owned by him. This matter had been in the Victorian Supreme Court, the Victorian Court of Appeal and the High Court. He was sentenced in 2000 and had served three years in gaol as a result. He had studied for his commercial Skipper’s licence while in gaol and was granted certificates of competency in mid or late 2003. He had also represented himself in proceedings in the Queensland Civil and Administrative Tribunal in a matter involving a claim of repudiation of contract and quantum meruit. He clarified that he had started, but had not finished, a law degree.

[23] Mr Jenkins claimed that his objective in relation to this application was to seek an increase in rates of pay and to formalise some terms and conditions which were industry norms. He gave the example of travel time and meal breaks, the latter of which had been the subject of a dispute notification to the Commission. ‘Marine Crew’ worked longer hours and double shifts and these provisions were more relevant to them. However, he stressed he was not suggesting that non-‘Marine Crew’ employees did not work double shifts. He accepted that a number of non-‘Marine Crew’ staff worked on ships and that there were routine interactions between the two groups. Commercial vessels would often operate without hospitality staff or a commentator and even some tourist commercial vessels operated on a ‘hop-on, hop-off’ basis, without hospitality staff. He said that the ‘Marine Crew’ was operationally distinct and it was trite to argue that they were interdependent on other employees in the business.

[24] Mr Jenkins was shown a number of position descriptions setting out the reporting structure on the vessel. He accepted that a description of the Master supporting the respondent’s ‘Hospitality based product’ was accurate. He also agreed that the Vessel Engineer was required to work with the Master’s First Mate, being the Cruise Director. The Vessel Engineer was required to assist in customer service and hospitality duties when not engaging in active engineering work, but it was a mistake to think of these as primary, rather than secondary duties. While there was some overlap in relation to the customer service duties in the above roles, there was limited interaction with hospitality staff. He agreed that all employees were required to facilitate the provision of excellent customer service.

[25] Mr Jenkins was unclear as to whether the Cruise Director had a supervisory role in relation to all crew, or just the hospitality crew. While a position description set out that Deck Hands reported to the Master through the Cruise Director, this could create confusion, particularly on smaller boats. He agreed that the existing Agreement currently applied to all of the Vessel Crew in Sydney. In any event, he did not accept that an arrangement whereby separate enterprise agreements applying to ‘Marine Crews’ on smaller and larger boats would be inefficient.

[26] Mr Jenkins was shown three memos distributed to ‘All Vessel Crew’ on 24 May 2011, 20 July 2012 and 1 May 2014. Respectively, they dealt with staff meal and waste incidence, garbage disposal arrangements and paid meal breaks for staff who work on vessels where customers are not having a meal. He accepted that the group of employees to whom the memos had been sent was wider than just the ‘Marine Crew’ and Commentators which he had identified as comprising the ‘Vessel Crew’, though the definition of ‘Vessel Crew’ seemed to have been fluid, over time.

Ms Adriana Svecova

[27] In her written statement, Ms Svecova said that 47 of the 57 Masters, Engineers or Deck Hands (‘Marine Crew’) employed by the respondent across Sydney wished to bargain separately for a new enterprise agreement and 43 had appointed her as a bargaining representative, pursuant to s 176(1)(c) of the Act. The remaining 4 were unwilling to sign a formal appointment for fear of retribution by the respondent. She explained that out of the remaining 10 employees, 6 had not been approached by her and 4 had indicated that they were not interested; though she speculated that they would not object to improvements in pay and conditions resulting from successful bargaining with the respondent.

[28] Ms Svecova emphasised that she was not a Union member, although some of the ‘Marine Crew’ were. Therefore, accusations by the Management of the respondent that she was ‘bringing the unions in’ were false.

[29] Ms Svecova stated that she had been involved in five meetings with the employer between 7 April and 26 May 2014 in order to commence bargaining for a new enterprise agreement. Mr Haworth had rejected the proposal to bargain and had said that the old Agreement would continue to apply, although he indicated that there may be an amendment to the pay and conditions and an increase due on 7 January 2015 would be brought forward. Ms Svecova had met with Mr Jenkins on 1 June 2014, and resolved on behalf of the employees she represented, to support the application filed by Mr Jenkins the following day. These employees continued to support the application.

[30] In cross examination, Ms Svecova clarified the wording of her statement in that she had told Mr Jenkins what she wanted to say and that he had written it down. She had checked it to make sure she was happy with the wording before signing it. She accepted that paragraphs 3 through 7 in both her statements (which referred to the number of ‘Marine Crew’ employees currently employed in Sydney, their coverage by the existing agreement, the number of these who supported bargaining for a new agreement and the number of those who had appointed her as a Bargaining Representative) and one of Mr Jenkins’ statements were virtually identical. They were all written by Mr Jenkins. It was the latter part of her statement, which referred to the ‘Marine Crew’ employees.

[31] In re-examination, Ms Svecova clarified that it was in fact 53 out of 65 ‘Marine Crew’ who supported bargaining for a new agreement.

For the respondent

Mr Anthony Howarth

[32] Mr Howarth is the General Manager of the respondent and has been working full time in the respondent’s business since 1988. He explained that his parents had started the respondent’s business as a Sydney Harbour coffee cruise service in 1970. The respondent had acquired Matilda Cruises Pty Ltd in 2005 and the respondent was itself purchased by Sealink Pty Ltd in 2011. This was when he became General Manager.

[33] In his written statement, Mr Howarth drew a distinction between the respondent’s Sydney operations and its Murray River operations. The Murray River Operations employed around 59 employees which run one vessel providing week long accommodated cruises. These employees are covered by the Murray River Cruise Vessel Agreement 2011 [AE899894]. The Sydney Harbour operations involve 15 vessels working in Sydney Harbour and surrounding waterways. The respondent currently employs 233 employees, although this would increase to approximately 280 in the summer peak period.

[34] Mr Howarth deposed that the Sydney operations staff were divided into three groups, being the salaried staff (46), the reservations staff (16) and the employees who perform ‘mutually dependent’ tasks directly and indirectly involved with the operation of the vessels and provision of customer service (171 employees). The salaried staff are employed under employment contracts and include people like himself and the Financial Controller. The reservation staff carry out administrative and clerical functions and were covered by the Clerks Private Sector Award 2010 until the respondent registered an enterprise agreement in 2011. The other staff were covered by the Agreement.

[35] Mr Haworth explained that the respondent’s Sydney operations involved 6 small ferry vessels, 8 cruise/sightseeing vessels and 1 work barge support vessel. There are four types of operations:

1. Ferry work - the 6 small ferry vessels provide transport and commuter services around the Harbour and surrounding destinations, either under contract to the New South Wales Government or to Harbour City Ferries Pty Ltd. This work makes up 10% of the respondent’s revenue.

2. Sydney Harbour Operations: Sightseeing - 2 of the ferry vessels and the rest of the fleet were involved in the provision of services, including Whale Watching, Coffee Cruises, Highlights Cruises and Hop On, Hop Off (HO HO) Sight Seeing tours. These services account for approximately 25% of the respondent’s revenue.

(a) On whale watching services, all staff, including the Captain, are expected to participate in providing a ‘customer service experience’ to passengers. Staff engaged in commentary and hospitality services were additional to those required to operate the vessel. Light meals and refreshments are served on these services.

(b) On Coffee Cruises, customers would be taken on the Harbour for a scheduled duration, departing and arriving at the same spot. All staff, including the Captain and the Engineer are expected to provide customer service functions, such as greeting and farewelling passengers. The Deck Hands’ primary role involved ensuring passengers embark and disembark safely, but they may be required to assist hospitality staff in their duties. The Captain and the Cruise Director had joint responsibility for ensuring customer needs are met. Sit down meals and drinks are available on these services.

(c) HO HO services move around the Harbour to places of interest and customers are free to disembark until embarking on another vessel. Staff also provide commentary services, light meals and drinks.

3. Restaurant Services - This involved the larger of the respondent’s vessels, including the largest, the ‘Sydney 2000’. These services provided full ‘a la carte’ meals and alcohol. Again, all staff were required to work closely as a team to ensure that customers had a memorable experience. The Captain, the Cruise Director, Deck Hands and kitchen staff were required to interact with guests as needed. All staff, aside from the Captain, were required to have a Responsible Service of Alcohol accreditation. These services combined with charter services involve 65% of the respondent’s revenue.

4. Charter services - These are provided for private functions for a variety of customers. All staff are again expected to provide services in addition to their primary duties on board the vessel, although this was dependent on the nature of the charter.

[36] Mr Haworth denied that there was a discrete group of employees known as ‘Marine Crew’ although this group, as defined in the application, form part of the larger group covered by the Agreement. The respondent had resisted the request from the ‘Marine Crew’ employees to enter into bargaining, because it did not seem that the majority of employees under the Agreement wished to enter into bargaining. The respondent was strongly opposed to providing the ‘Marine Crew’ with a separate enterprise agreement, as it saw its business as the provision of guest services. This would ensure the respondent’s objective of creating a memorable experience for its customers. This objective was best served by a sense of cohesion in relation to all employees working on vessels.

[37] Mr Haworth stated that prior to the purchase of Matilda Cruises Pty Ltd, the employees of the respondent were covered by approximately five different Awards. It was subsequently recognised that having one Agreement which covered all employees who were involved in providing services to customers and with the additional customer based duties of Captains, Deck Hands and the Cruise Director codified in the Agreement, yielded better results. The coverage was deliberately expanded in the Agreement approved in 2009 due to this recognition. The respondent’s preference for rolling over the current arrangements had been communicated to employees as this was fundamental to the operation’s success.

[38] A memo addressed to ‘The entire Vessel team’ from Mr Howarth was sent by email on 26 June 2014 in the following terms:

‘Dear All,

Today, Bruce Jenkins, Adriana Svekova and Luke Colombo asked the Fair Work Commission that the Marine Crew (Masters, Engineers and Deckhands) be permitted to have their own workplace agreement with the Company separate to everyone else. Our company vigorously opposed this on the grounds that it would never agree to one select grouping of employees to advantage themselves at the expense of everyone else.

The company will only agree to a workplace agreement which covers ALL our Vessel Crew. WE told the fair Work Commission that we will talk to our employees about an agreement that would cover all the Vessel Crews. Unfortunately that offer was knocked back by Bruce and his team.

It seems amazing to us but Bruce told the Fair Work Commission that he wanted to press on with an attempt to get a select group of employee’s advantage over another. The Commission has set the case down for a hearing on 29 July 2014.

The other case this morning was an application by Bruce in relation to meal money. After hearing form the Commission about his prospects should that matter go ahead Bruce agreed to withdraw it.

We will keep you all informed as to what the Commission decides after hearing the case on 29 July next.’

[39] In cross examination, Mr Haworth said that he had seen a lot of industrial arrangements in his 44 years in the business and the current arrangements were the most efficient and cohesive he had experienced. He did not believe it followed that the motivation of pay and conditions for four, rather than three, different groups would yield greater efficiencies. The goal was to create an environment on the small space of the vessels which was harmonious, cooperative and collaborative in order to satisfy customer expectations. He saw no reason to tamper with the current arrangements. Mr Haworth agreed that there was a different market for hospitality staff in that there was a larger pool of workers.

[40] In relation to an allowance offered contractually to individual staff working in satisfaction of a Harbour City Ferries contract, Mr Haworth was of the view that this was an appropriate means to reward employees working in a different environment.

[41] Mr Haworth did not accept that the ‘Marine Crew’ were subject to different safety obligations, but accepted that they had separate qualifications. While all employees had different duties to discharge in relation to safety, he saw them as jointly responsible for safety at large. Mr Haworth believed that all of his employees were notionally covered by the Marine Tourism and Charter Vessels Award 2010 [MA000093].

[42] In response to a question from me, Mr Haworth clarified that prior to the 2009 Agreement, the employees had been covered by a collective agreement which had been in existence when the respondent purchased Matilda in 2005 in addition to a mixture of Awards for the other staff. These complicated arrangements had created disquiet and dissent amongst employees and 2009 was the first time that all Vessel Crew were covered under the same instrument. There had been no Union opposition to the approval of the 2009 Agreement at the time.

SUBMISSIONS

For the respondent

For the applicant

[43] In written submissions, Mr Jenkins agreed that the statutory test proposed by Mr Mahendra was the correct one (see para [57]), but claimed that this test actually assists the applicant’s case. The group defined by Mr Jenkins as ‘Marine Crew’ are operationally and organisationally distinct such as to satisfy the Commission that the group was fairly chosen for the purposes of s 237(2)(c) of the Act.

[44] Mr Jenkins added that there were ‘elements’ of geographical distinction in that there was little interaction or contact between ‘Marine Crew’ and many of those staff covered by the Agreement. It was also said that the ‘Marine Crew’ were geographically distinct from shore based employees reporting to the Marine Manager.

[45] Mr Jenkins set out a number of factors which were said to contribute to a finding that ‘Marine Crew’ were operationally distinct. He noted that some vessels would have two ‘Marine Crew’ working alone on board, while others would have up to five ‘Marine Crew’ and up to 29 other ‘ancillary staff’ (Cooks, Galley Hands, Wait Staff, Cruise Directors and Entertainers). He also noted that ‘Marine Crew’ would work longer hours, including double shifts. In comparison, it was common to use two crews of hospitality staff on some vessels. Hospitality and entertainment staff had roles that were entirely distinct from that of the ‘Marine Crew’. He noted that hospitality crew were not required to be able to operate and navigate vessels and that it was not essential for ‘Marine Crew’ to provide hospitality and entertainment services.

[46] Mr Jenkins referred again to the organisational chart in his witness statement (See para [19]) to support his submission that there were separate reporting lines for ‘Marine Crew’. He noted that ‘Marine Crew’, along with shore based engineers, contractors and cleaners report to the Marine Manager, but out of that group, only the ‘Marine Crew’ navigate and operate vessels on Sydney Harbour and surrounding waters. As such, they were organisationally distinct.

[47] Mr Jenkins submitted that it would be reasonable for the Commission to make a majority support determination in the terms sought by the applicant (s 237(d)) andclaimed that it was an industry norm that marine operators have enterprise agreements with ‘Marine Crew’ separate to those with staff who performed other functions. The respondent maintaining four, rather than three enterprise agreements, would not have a detrimental effect on customer service, efficiency or employee ‘happiness’. On the other hand, there was no cogent evidence that the current arrangements resulted in increases in productivity or efficiency. Some of the ‘Marine Crew’ working on vessels contracted with Harbour City Ferries had been given significant pay increases. In light of this, the respondent could not rely on a submission that different conditions could reduce employee ‘happiness’.

[48] Mr Jenkins noted that the Agreement had passed its nominal expiry date. He said that the applicant should not be required to bargain for all employees. In the event that a majority support determination was made, it was expected that a moderate improvement in pay and conditions would flow to the ‘Marine Crew’ employees. It may be that the respondent would enter into another enterprise agreement with the other employees currently covered by the Agreement, although this bargaining would likely proceed differently, in that these staff were largely ‘itinerant or seasonal backpacker wait staff’ in contrast to the career professionals such as the ‘Marine Crew’.

[49] In opening remarks, Mr Jenkins advised that he no longer pressed the submission that the ‘Marine Crew’ were geographically distinct. However, it could still be said that they were operationally and organisationally distinct. Hospitality and entertainment staff roles were entirely distinct to ‘Marine Crew’ roles. The Captain occasionally welcoming people on board a vessel did not change this arrangement. Entertainment staff and commentators reported to the Entertainment Manager and hospitality staff reported to the Hospitality Manager. He noted that there were seasonal changes in the levels of wait staff and hospitality staff, who were subject to different types of supply and demand in the employment market. He referred to them as ‘minimum wage employees’.

[50] Mr Jenkins argued that industry norms were a powerful argument in favour of his application, in that the usual practice was for marine operators to have a separate enterprise agreement for ‘Marine Crew’. He gave the example of the Quicksilver Agreement. He sought a majority support determination in order to commence good faith bargaining with the respondent. The respondent’s business was profitable and there was no reason why it could not enter into bargaining. The existing Agreement could not be varied as it was a transitional collective agreement.

[51] In further oral submissions, Mr Jenkins noted that it was conceded by the respondent that there was majority support for bargaining amongst the group he described as the ‘Marine Crew’. While he acknowledged some commonality in duties in relation to the provision of excellent customer service, there was a distinction on operational grounds in that nobody else performed the job of the ‘Marine Crew’. They were subject to different qualifications and technical requirements. He described their secondary customer service duties as an ‘intersection’ on operational grounds and submitted that it could not support a finding that they were not operationally distinct.

[52] In relation to reasonableness, Mr Jenkins acknowledged that while it was true that Marine Operators often have enterprise agreements covering only their ‘Marine Crew’, it was also common for them to have enterprise agreements covering the whole of their operations. In any event, it could be said that it was not abnormal or unusual for Marine Operators to have enterprise agreements covering only their ‘Marine Crew’. Granting the determination would not undermine cohesion in the workplace and it would shift a balance of power away from the employer to a group of employees.

For AIMPE

[53] Mr J Fallone of AIMPE was granted limited leave to intervene. In oral submissions, he noted that it was conceded by the respondent that the majority of ‘Marine Crew’ wished to bargain. He supported the submissions of the applicant that the group was ‘fairly chosen’ in that it was operationally and organisationally distinct, specifically referring to the organisational chart provided by the applicant. The respondent had not provided evidence to refute that the chart reflected their arrangements or that Masters, Engineers and Deck Hands lie under a different part of the operational structure to the sectors managed by the Entertainment Manager and the Hospitality Manager. The reliance of the respondent on the position descriptions setting out the secondary duties of ‘Marine Crew’ to show that they were not operationally distinct, was unfounded.

[54] Mr Fallone said that the primary function of the ‘Marine Crew’ was to ensure that the vessel was working safely and smoothly to get customers to their destination, regardless of the nature of the service on which they worked. In contrast, the hospitality and entertainment staff were to ensure that the customers were fed, happy and entertained. There were clear operational distinctions. The organisational structure supports the operational structure.

[55] Mr Fallone understood that the respondent had concerns as to the impact of a majority support determination on its business, but he drew the Commission’s attention to a number of enterprise agreements covering a group similar to the ‘Marine Crew’ in this case, which supported a finding that it would be reasonable to make a majority support determination in the terms sought. These include:

• Bruny Island Ferry Services Agreement 2013 [AE408102];



• Murray River Cruise Vessel Agreement 2011 [AE899894];



• Quicksilver Agreement.

[56] Mr Fallone noted the contract entered into by the respondent with Harbour City Ferries and submitted that there were elements of the respondent’s business which were changing. In light of this, making the majority support determination would be in the interests of fairness and efficiency. Further, it would be reasonable to make the determination, in view of the respondent’s refusal to commence bargaining.

For the respondent

[57] In written submissions, Mr D Mahendra of Counsel set out that in order to make a majority support determination, the Commission must be satisfied that the group of employees who will be covered by the enterprise agreement had been fairly chosen, taking into account whether the group is geographically, operationally or organisationally distinct; See: Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union and Others[2012] FWAFB 2206 (‘Cimeco v CFMEU’). These were not met in this case and the application should be dismissed.

[58] Mr Mahendra submitted that it could not be said that the group of employees chosen by the applicant are geographically distinct, as they were simply part of a group of 171 employees who perform work in Sydney and who are covered by the Agreement. Nor could they be said to be operationally distinct as they perform the same role as a number of other employees in the provision of customer services to passengers. Further, all of the employees covered by the Agreement are dependent on each other for the successful performance of their own roles; See National Union of Workers v Interlloy Pty Ltd[2013] FWC 5479 (‘Interlloy’); and Association of Professional Engineers, Scientists and Managers, Australia v Australian Red Cross Blood Service and others [2011] FWA 2914. Finally, the group of employees chosen by the applicant was not organisationally distinct as there were no separate reporting lines for that group in contrast to the other employees covered by the Agreement.

[59] Mr Mahendra said that in order to make a Determination, the Commission would also need to be satisfied that it is reasonable in the circumstances to do so. It would not be so in this case, because the number of Awards that would apply to the respondent’s employees would result in flow on inefficiencies and problems with cohesion that would arise in attempting to maintain coverage of employees under these instruments. This could have an adverse effect on the ongoing success of the respondent.

[60] In opening remarks, Mr Mahendra stressed that the respondent did not seek to dispute the evidence put forward by the applicant in addressing the criteria under ss 237(2)(a) and (b) of the Act. The issues for determination in this matter arose under ss 237(2)(c) and (d). It was incorrect for Mr Jenkins to submit that the words ‘fairly chosen’ should be interpreted differently in the context of a scope order, as opposed to another part of the Act. This was inconsistent with the principles of statutory construction and the only matters which the Commission should have reference to are whether the group is geographically, operationally or organisationally distinct; See: John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FCA 286. Whether the group was operationally distinct would turn on the facts of each case. However, the Commission should find that the ‘Marine Crew’ is not operationally distinct, as there are routine interactions between all employees aboard the vessel; See: Interlloy at para [86].

[61] In further oral submissions, Mr Mahendra submitted that reliance on a list of enterprise agreements which covered only ‘Marine Crew’ would be of no use to the Commission.

[62] Mr Mahendra put that there was an inconsistency in the applicant identifying some of the employees who report to the Marine Manager and not others as ‘Marine Crew’. In any event, the chart adduced by the applicant merely sets out a structure through which administrative processes could take place. The evidence of Mr Haworth set out that when aboard the vessel, all staff report through the Cruise Director to the Master. There were overlapping duties which they perform. Accordingly, the chart provided by the applicant should be given little weight by the Commission.

[63] Mr Mahendra submitted that the meaning of ‘fairly chosen’ should be interpreted consistently throughout the Act. The Explanatory Memorandum lent weight to the notion that the Commission should have regard to the manner in which an employer chooses to organise its enterprise. The employer had chosen the current arrangement, having previously been subject to a number of industrial instruments and now found that the workplace was more cohesive and harmonious as a result. Mr Haworth had been in the business a significant period of time and his evidence to this effect should be accepted over that of the applicant, who had been working for the respondent for a relatively short period. The applicant had conceded that there were routine interactions between the ‘Marine Crew’ and the other employees on the vessel. There was an overlap in their duties and a clear line could not be drawn between them.

[64] In oral submissions in reply, Mr Jenkins said that Mr Mahendra was not correct to say that there was no evidence as to industry norms, as he had provided evidence of a similarly sized, if not larger, business to the respondent.

[65] Mr Jenkins claimed that Mr Haworth had not been able to satisfactorily answer questions as to how a change in industrial arrangements would affect efficiency or productivity.

[66] Mr Jenkins put that it would be fair and reasonable to make a majority support determination. If the respondent wanted to argue about scope, it could apply for scope orders later. The grant of the determination would allow the parties to get bargaining underway.

CONSIDERATION

The legislative provisions

[67] The legislative provisions governing this application are set out at ss 236-237 of the Act as follows:

‘236 Majority support determinations

(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the FWC for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.

(2) The application must specify:

(a) the employer, or employers, that will be covered by the agreement; and

(b) the employees who will be covered by the agreement.

237 When the FWC must make a majority support determination

Majority support determination

(1) The FWC must make a majority support determination in relation to a proposed single-enterprise agreement if:

(a) an application for the determination has been made; and

(b) the FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which the FWC must be satisfied before making a majority support determination

(2) The FWC must be satisfied that:

(a) a majority of the employees:

(i) who are employed by the employer or employers at a time determined by the FWC; and

(ii) who will be covered by the agreement;

want to bargain; and

(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and

(c) that the group of employees who will be covered by the agreement was fairly chosen; and

(d) it is reasonable in all the circumstances to make the determination.

(3) For the purposes of paragraph (2)(a), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Operation of determination

(4) The determination comes into operation on the day on which it is made.’

[68] The Explanatory Memorandum to the Fair Work Bill 2008 deals with the meaning of ‘fairly chosen’ albeit not in the context of s 237(2)(c) of the Act in relation to ‘scope orders’. Given the principle of statutory construction that the meaning of words in one section of a statute are taken to have the same meaning where they appear in other sections, unless expressly stated to the contrary; See: Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 per Hodges J, I am satisfied it is appropriate to have regard to the Explanatory Memorandum in this context. At 777 it states:

‘777. It is intended that in assessing whether the group of employees covered by the agreement is fairly chosen, FWA might have regard to matters such as:

• the way in which the employer has chosen to organise its enterprise;




and

• whether it is reasonable for the excluded employees to be covered by the agreement having regard to the nature of the work they perform and the organisational and operational relationship between them and the employees who will be covered by the agreement.’

[69] Mr Mahendra, properly I believe, conceded that the provisions of ss 237(2)(a) and (b) are not at issue in this case; although he expressed the concession as the respondent not disputing the evidence put by the applicant that:

(a) a majority of the employees proposed to be covered by the agreement want to bargain; and

(b) the respondent employer has not yet agreed to bargain, or initiated bargaining for the agreement.

[70] It is to be observed that the Commission must be satisfied as to each of the four criteria set out in s 237(2) of the Act. Accordingly, the central agreed focus in this case was on ss 237(2)(c) and (d).

[71] True it is that there are agreements in the marine tourism industry such as Quicksilver Agreement which only cover the similar classifications to what is sought in this application. However, the practice of separate agreements for the maritime crew is neither universal nor unique.

[72] As the concept of an enterprise agreement implies, consent between an employer and its employees is the underpinning essence of an agreement. From my inquiries, it may be accepted that the agreements relied upon by Mr Jenkins and Mr Fallone did not arise from any disagreement between the employer and the employees as to scope and/or coverage. In addition, I was provided with no arbitrated decision of the Commission in respect to any agreements in the maritime industry directly on all fours with the issues in this case. That being so, agreements made by consent have limited potential as authority for the propositions advanced by Mr Jenkins and AIMPE.

[73] In any event, there are a number of other factors which tell against the submissions of Mr Jenkins and Mr Fallone. Firstly, there is no history of this employer and its employees having separate agreements for ‘Marine Crew’ and hospitality staff. The most recent Agreement, now expired, demonstrates this fact.

[74] Secondly, given the evidence (which I accept) of the close working relationship between the ‘Marine Crew’ and the hospitality staff in order to provide a ‘holistic’ tourist experience, it seems to me that the possible division of the workforce and the flow on effects of possibly having two significantly different sets of wages and conditions may have the potential for workplace and industrial discontent, even conflict. That is not a prospect I am prepared to risk.

[75] Thirdly, there was evidence - not seriously challenged - that members of the ‘Marine Crew’ report directly to the Cruise Director - the Deck Hands, for example - and all staff report through the Cruise Director to the Master. In this respect, relying on an organisational chart to demonstrate the case you wish to prove, does not necessarily reflect the reality of the reporting lines which are plainly disclosed by the tendered position descriptions. I note that Mr Jenkins does not seek to include Shore based Engineers and ancillary staff in the ‘Marine Crew’ although the organisational chart includes them as reporting to the Marine Manager. This exclusion further undermines the reliance on this chart by Mr Jenkins and its reliability.

[76] Fourthly, having regard for Mr Haworth’s 44 years experience in the industry, I found his evidence far more persuasive than that of Mr Jenkins, whose experience is very limited (prior to November 2013, he had no commercial experience as a Skipper) and from his cross examination, it would appear to have been embellished. Mr Haworth gave evidence that the current arrangements (one agreement covering all Vessel Crew) have worked well for over five years and have resulted in a productive and cooperative workforce. He said at PN533-PN534:

‘Look, my view is that if you have a group of people who are working together in a small space on whatever, if they're all working under the same terms and conditions, you have a very harmonious group of people. If you have a group of people working towards that goal who are under different conditions, you have a situation where people snipe and bitch and moan and complain and spend a lot of time focusing on things other than the customer. It's the view through experiences like that over 44 years. I've seen it, I've lived it, I've breathed it, I've grown up with it and I know that the current circumstance is by far and away the best, most harmonious model. From a management perspective that – in terms of managing, coordinating, cohesively bringing a team together that you can have. I know it works best, and, you know, we've gone through a very tough period of time environmentally on the harbour and in Sydney tourism over the past seven or eight years and yet the company has done very well. It's thrived in that time and it's – a great deal of that has to do with the fact that we have a very harmonious group of people working together for one goal which is to look after our customers. We have a very strong and successful customer culture or whatever and we don't want to ... tamper with that. We don’t want to do things which actively sabotage that process.’

There was no real challenge to this evidence. Mr Haworth’s evidence was clear, cogent and believable.

[77] Fifthly, I do not accept that the ‘Marine Crew’ are geographically, operationally or organisationally distinct. It is unarguable that they are certainly not geographically distinct. Mr Jenkins conceded as much. As to whether the ‘Marine Crew’ are operationally or organisationally distinct, I accept the respondent’s contentions that:

1. All employees work on the vessel;

2. The respondent’s focus is on hospitality and customer service;

3. All the Vessel Crew are dependent on each other to provide a ‘holistic’ customer/tourism experience; and

4. Such a focus is not a secondary function but, as is plain from the position descriptions tendered by Mr Mahendra, are a primary function of all Vessel Crew.

[78] Sixthly, if, as seems obvious, Mr Jenkins’ objective in lodging this application is to secure higher rates of pay and improved conditions for himself, then surely this is also an aspiration of all other Vessel Crew. As a matter of equity, it may be more appropriate to seek to achieve such a result through a wider collective approach, involving all Vessel Crew.

[79] There is no doubt that the interests of the excluded employees are a relevant consideration in the assessment of whether a group of employees was ‘fairly chosen’. In Cimeco v CFMEU, a Full Bench of Fair Work Australia (FWA, as the Commission was then known) said at paras [22]-[23]:

‘[22] To the extent that it is suggested that the interests of the excluded employees are irrelevant we reject that submission. In evaluating whether the group to be covered by the agreement has been fairly chosen it is entirely appropriate to have regard to the consequences of that choice, that is, which employees have been excluded from the agreement.

[23] In circumstances where FWA has made a ‘majority support determination’ or a ‘scope order’ during the bargaining process for the agreement this will be relevant to the determination under s.186(3) of whether the group covered by the agreement was ‘fairly chosen’. This is because one of the requirements of which FWA must be satisfied before making a majority support determination or a scope order is that ‘the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen’ (see s.237(2)(c) and 238(4)(c)).’

[80] This principle was expressed slightly differently by another Full Bench in Construction, Forestry, Mining and Energy Union v ResCo Training and Labour Pty Ltd[2012] FWAFB 8461, where the Bench said at paras [34]-[35]:

‘[34] Nevertheless as part of the approval process the tribunal needs to be satisfied that the group of employees covered by the agreement is fairly chosen by reference to the other classes of employee who might have been included in the agreement and the various classes who are included. In determining this question the tribunal is required to consider whether the group of employees is geographically, operationally or organisationally distinct. The inclusion or exclusion of a particular group may operate unfairly in one way or another and this will depend on a consideration of all the circumstances.

[35] In most enterprises there is unlikely to be only one fair manner of selecting the class of employees to be covered by an enterprise agreement. Different scope provisions may be equally described as fair in the sense that no manifest unfairness arises from their application. That is not to say that the parties may have a particular preference or view about the scope and favour a different formulation. The tribunal’s task however is not to determine the scope clause. Its task is to guard against unfairness by being satisfied that the group can be described, in all the circumstances, as fairly chosen.’

[81] In my opinion, the interests of the excluded employees are likely to be enhanced by their inclusion in a single enterprise agreement covering all Vessel Crew. This finding tells against the making of a majority support determination in this case.

[82] Seventhly, as mentioned earlier, the words of the Explanatory Memorandum as to the assessment of whether a group of employees is ‘fairly chosen’ includes the way in which the employer has chosen to organise its enterprise. Here, it is obvious the respondent has organised its enterprise such as to have one enterprise agreement covering its Vessel Crew. It does not wish to disturb this industrial arrangement. That the interests of the employer is a relevant consideration in the assessment of whether a group of employees was ‘fairly chosen’, was further emphasised by the comments of the Full Bench in Cimeco v CFMEU at para [21]:

‘It is also appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of employees in determining whether the group of employees was fairly chosen.’

Given the expressly stated view of the respondent, this is a matter I have had regard to in assessing whether the group of employees was ‘fairly chosen’ in this case; See: Interlloy.

[83] Eighthly, the reliance by Mr Jenkins and Mr Fallone on the higher rates of pay for the respondent’s employees working on the Harbour City Ferries contract is misconceived. There is a clear and obvious rationale for paying those employees higher rates of pay or an allowance for working on essentially commercially based passenger ferry services for the New South Wales Government.

[84] For the reasons herein expressed, I am not satisfied that the applicant has satisfied the tests required by ss 237(2)(c) and (d) of the Act such as to warrant the making of a majority support determination for ‘Marine Crew’ employed by Captain Cook Cruises. Specifically, I conclude that the group of employees identified as the ‘Marine Crew’ are not geographically, operationally or organisationally distinct and that it would be unreasonable in the circumstances to make a majority support determination in the terms sought by the applicant. The application must therefore be dismissed. An order to that effect will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Applicant in person.

Mr D Mahendra of Counsel for the respondent.

Mr J Fallone for the Australian Institute of Marine and Power Engineers (intervening).

Hearing details:

2014:

Sydney.

29 July

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