Captain Cook Cruises Pty Ltd T/A Captain Cook Cruises Pty Ltd

[2023] FWCA 3064

[2023] FWCA 3064

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Captain Cook Cruises Pty Ltd T/A Captain Cook Cruises Pty Ltd

(AG2023/3157)

MURRAY RIVER CRUIS VESSEL ENTERPRISE AGREEMENT 2023

Tourism industry
COMMISSIONER PLATT	ADELAIDE, 21 SEPTEMBER 2023

Application for approval of the Murray River Cruise Vessel Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Murray River Cruise Vessel Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Captain Cook Cruises Pty Ltd T/A Captain Cook Cruises Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 15 September 2023.

1. On 19 September 2023, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. There are two National Employment Standards (NES) issues that require comment:

·  Clause 6.4 of the Agreement does not appear to provide compassionate leave for stillbirth/miscarriage consistent with s.104(1)(b) and (c) of the Act.

·  Clause 7.2.6 of the Agreement provides that severance pay is not payable where the employer finds suitable alternative employment however the provision is not subject to an application to the Fair Work Commission in accordance with s.120 of the Act.

1. Clause 1.5(iii) of the Agreement acts as an effective NES precedence clause. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 19 September 2023. The undertaking deals with the following topics:

·  Despite Clause 3.2.3 of the Agreement, the minimum engagement for a Casual Vessel-Based Employee is half a day.

·  Despite Clause 4.1.2 of the Agreement, any ordinary hours worked by Land Based Employees on Sunday will be paid as overtime, and for casual employees, casual loading will apply to the calculation of overtime rates at 187.5% for the first 2 hours and 250% thereafter.

·  Clause 4.2.1(e) will not apply the Agreement. Casual loading will therefore apply to the calculation of overtime rates at 187.5% for the first 2 hours and 250% thereafter.

1. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 27 September 2027.

COMMISSIONER

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