Calypso Reef Charters Pty Ltd T/A Calypso Reef Charters

[2021] FWCA 5085

[2021] FWCA 5085

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Calypso Reef Charters Pty Ltd T/A Calypso Reef Charters
(AG2021/6550)

CALYPSO REEF CHARTERS EMPLOYEE COLLECTIVE AGREEMENT 2009

Tourism

DEPUTY PRESIDENT LAKE   BRISBANE, 17 AUGUST 2021

Application for termination of the Calypso Reef Charters Employee Collective Agreement 2009 – agreement terminated

[1] On 4 August, the Calypso Reef Charters Pty Ltd T/A Calypso Reef Charters (theApplicant) lodged an application to the Fair Work Commission (theCommission) pursuant to s.222 of the Fair Work Act 2009 (theAct) to terminate the Calypso Reef Charters Employee Collective Agreement 2009 (the Agreement), which is a multi-enterprise agreement with a nominal expiry date of 3 March 2014.

[2] The Applicant filed a Form F24A, which provides that the Applicant is the only company covered by the Agreement that employs individuals. Of the other two enterprises covered, Safari Tours Pty Ltd has been deregistered and does not have any employees, and the Trustee for the A.C.T Trust also has no employees. Meanwhile, the Applicant has 22 employees are covered by the Agreement.

[3] There are no unions covered by the Agreement.

Consultation with staff

[4] The Applicant’s Human Resources Manager, Sharne Waerea, provided evidence that from at least January 2021 several employees have requested that the Agreement be terminated.

[5] On 17 and 24 June and 1 July 2021, Ms Waerea held one-on-one sessions with each of the managerial and senior employees to explain the effect of the termination of the Agreement. The explanation included written documents that compared an employee’s entitlements under the Agreement with those under the relevant Award. Given the nature of the workforce, four separate documents were prepared comparing the Agreement terms in respect of:

a) casual employees covered by the Professional Diving Industry (Recreational) Award 2020;
b) casual employees covered by the Marine Tourism and Charter Vessels Award 2020;
c) casual employees covered by the Professional Diving Industry (Recreational) Award 2020; and
d) part-time employees covered by the Amusement Recreation and Events Award 2020.

[6] These were not initially provided in the material provided to the Commission. However, they were sent to my Chambers upon request and I have reviewed each. These documents helpfully compare in table form the Agreement terms against the terms of the Awards that the employees would be covered by if the Agreement were terminated.

[7] Ms Waerea’s evidence was that the managerial and senior employees then explained the effect of the termination of the Agreement to employees.

[8] Further the comparison documents referred to above was then given to each employee covered by the Agreement and each employee was invited to schedule a meeting with Ms Waerae to answer any questions or concerns they had.

[9] On 23 July 2021, Waerae held seven one on one meetings with employees to answer questions.

[10] On 5 July 2021, a voting pack was emailed and hand delivered to each employee covered by the Agreement. That pack included a ballot paper and informed that the vote would occur by ballot, which the employees could post or drop to either of the ballot boxes located at the Work Shed or the Marina Office’ by 21 July 2021.

[11] The voting process concluded on 21 July 2021. Of the Applicant’s 22 employees, 21 of them participated in the ballot and, of those, 20 approved the termination.

Consideration

[12] Section 222 of the Act provides that if a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the Commission for approval of the termination, within 14 days (or a further period allowed by the Commission). The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

[13] Section 223 of the Act goes on to provide that the FWC must approve a termination of an enterprise agreement if:

“(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[14] Section 224 of the Act confirms that, if a termination is approved under s.223, the termination comes into operation from the date specified in the decision which terminates the Agreement.

[15] Based on the material contained in the declaration filed with the application and the additional documentation provided upon request, I am satisfied the Applicant has made the application within 14 days of the termination being agreed upon by an overwhelming majority of its employees, after a period of communication and consultation regarding the effects the termination would have on their employment entitlements. Taking into account all of the circumstances including those in ss.222 and 223, I consider that it is appropriate to terminate the Agreement.

[16] Accordingly, I order that the Agreement be terminated and the termination will operate from 24 August 2021.

DEPUTY PRESIDENT

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< AC318536 PR732906 >