Construction, Forestry, Maritime, Mining and Energy Union (105N) v Vyscot Pty Ltd t/a Captain Cook Cruises (WA)
[2020] FWCFB 1992
•17 APRIL 2020
| [2020] FWCFB 1992 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Construction, Forestry, Maritime, Mining and Energy Union (105N)
v
Vyscot Pty Ltd t/a Captain Cook Cruises (WA)
(C2020/301)
VICE PRESIDENT HATCHER | SYDNEY, 17 APRIL 2020 |
Appeal against decision [2020] FWCA 209 of Commissioner Williams at Perth on 15 January 2020 in matter number AG2019/3222.
Introduction and background
[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has lodged an appeal, for which permission to appeal is required, against a decision issued by Commissioner Williams on 15 January 2020 1 (decision) to approve the SeaLink WA Enterprise Agreement 2019 (Agreement). In its grounds of appeal, the CFMMEU contends that the decision was in error in the following respects:
(1) The Ports, Harbours and Enclosed Vessels Award 2010 (Ports Award) was not treated as a relevant award for the purpose of the application of the better off overall test (BOOT) under ss 186(2)(d) and 193 of the Fair Work Act 2009 (FW Act).
(2) The Agreement was not genuinely agreed as required by s 186(2)(a) of the FW Act because the employer covered by the Agreement, Vyscot Pty Ltd (Vyscot) had not complied with the requirement in s 180(5) to take all reasonable steps to explain to employees who would be covered by the Agreement its terms and their effect. This non-compliance consisted of a failure to explain to employees the terms of the Ports Award which had been varied or excluded by the Agreement.
(3) The Commissioner could not have been satisfied that the Agreement passed the BOOT, because it was less beneficial than the Ports Award for those covered by it. Additionally, in respect of prospective employees, the Agreement covers employees in classifications that fell within the coverage of the Ports Award and other maritime awards, and any future employees engaged who would be covered by the Ports Award or the other awards would be worse off under the Agreement than under the Ports Award.
[2] Vyscot trades as “Captain Cook Cruises (WA)”. It is a Western Australian-based company, and is an entity which forms part of the larger SeaLink business which engages in marine tourism and passenger transportation at various locations throughout Australia. The non-contested evidence before the Commissioner, which is referred to in paragraphs [17] and [18] of the decision, was that Vyscot operates ten vessels, of which seven are utilised solely for tourism, leisure and recreational cruises, one operates primarily within the marine tourism and chartered vessels industry, and two are used to provide ferry and commuter services. At least ninety percent of Vyscot’s annual revenue is derived from marine tourism activities. Before the Agreement took effect, Vyscot and its employees were covered by the Captain Cook Cruises (WA) Enterprise Agreement 2015.
[3] The Agreement does not contain a coverage clause in terms, but the intended coverage of the Agreement can be inferred from clause 2.1, which provides:
2.1 The Parties to this Agreement are:
a) Vyscot Pty Ltd T/as Captain Cook Cruises (WA) ("the Employer");
b) Employees of the Employer employed in Western Australia in the classifications in Clause 5 - Wages, including the Commuter Ferry Division;
c) The Construction, Forestry, Maritime, Mining and Energy Union ("the Union").
[4] It is apparent from the above provision that the Agreement covers all of Vyscot’s employees who are employed in the State of Western Australia and who fall within the classifications set out in clause 5 of the Agreement. The classifications in clause 5 consist of Skippers (Master IV and Master V), Engineers (MEO 1 and 2) and Deck Crew (Deckhand and Deckhand Senior).
[5] Vyscot contended before the Commissioner that the only modern award which covered the employees who were covered by the Agreement and was relevant to the BOOT was the Marine Tourism and Chartered Vessels Award 2010 (Marine Tourism Award). The coverage of that award, as relevant to this matter, is set out in clause 4 as follows:
4. Coverage
4.1 This industry award covers employers throughout Australia in the Marine Tourism and Charter Vessels Industry and their employees in the classifications listed in clause 13—Minimum wages to the exclusion of any other modern award.
. . .
4.7 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.
[6] The expression “Marine Tourism and Charter Vessels Industry” is given the following definition in clause 3.1 of the Marine Tourism Award:
marine tourism and charter vessel industry means the operation of vessels engaged on a day charter or for an overnight charter wholly or principally as a tourist, sightseeing, sailing or cruise vessel and/or as a place of or for entertainment, functions, restaurant/food and beverage purposes engaged in the provision of water orientated tourism, leisure and/or recreational activities but does not include the operation of ferries engaged in regular scheduled passenger and/or commuter transport.
[7] The classifications in the Marine Tourism Award are set out in Schedule B to the award. For relevant purposes, they include Crew Levels 1-3 (which include deckhand functions), Engineers MED III, II and I, and Masters V and IV.
[8] The coverage of the Ports Award, which the CFMMEU contended covers the current employees engaged by Vyscot on the ferry/commuter vessels and/or could potentially cover prospective employees falling within the classifications in the Agreement, is relevantly as follows:
4. Coverage
4.1 This award covers employers throughout Australia in the ports, harbours and enclosed water vessels industry and their employees in the classifications listed in clause 13 to the exclusion of any other modern award. The award does not cover employers and employees wholly or substantially covered by the following awards:
. . .
(g) the Marine Tourism and Charter Vessels Award 2010.
For the purpose of clause 4.1, ports, harbours and enclosed water vessels industry means the operation of vessels of any type wholly or substantially within a port, harbour or other body of water within the Australian coastline or at sea on activities not covered by the above awards.
. . .
4.9 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.
[9] The classifications in the Ports Award are set out in clause 13 and relevantly include Master, Engineer, General Purpose Hand and Deckhand.
The decision
[10] The Commissioner recorded in the decision that the issue raised by the CFMMEU in opposition to the approval of the Agreement was that Vyscot’s commuter ferry services was covered by the Ports Award and that, in respect of that award, the Agreement did not pass the BOOT. On the basis of the evidence referred to in paragraph [2] above, the Commissioner rejected this contention in the following terms:
“[26] Considering the evidence as to the activities of the Applicant’s vessels and the sources of its annual revenue I find that the Applicant and its employees are substantially engaged in tourist, sightseeing, entertainment, functions, water-oriented tourism and leisure and/or recreational activities. Therefore, I am satisfied that the Applicant is substantially covered by the Marine Tourism Award.
[27] Clause 4.1 of the Marine Tourism Award covers the Applicant and their employees and expressly states that this coverage is to the exclusion of any other Modern Award. Consequently, I find that the Ports Award does not cover the Applicant.”
[11] The Commissioner then went on to find that the approval requirements in ss 186, 187 and 188, as relevant, were satisfied, and approved the Agreement.
CFMMEU’s submissions
[12] In its submissions the CFMMEU did not challenge the findings of fact made by the Commissioner beyond contending that one vessel which provides services to and from Rottnest Island was a ferry service and stating that it did not necessarily accept the characterisation of other vessels as engaged in marine tourism activities. In respect of its first ground of appeal, the CFMMEU submitted that the Commissioner erred in relying upon the words “to the exclusion of any other modern award” in clause 4.1 of the Marine Tourism Awardto find that that award was the solely applicable award. It submitted that while an employee could be covered by only one award, an employer could be covered by more than one award, and referred to the Full Bench decision in CFMMEU v Noorton Pty Ltd t/a Manly Fast Ferry 2 (Noorton) in that connection. On this approach, the CFMMEU submitted, the employees (approximately seven in number) who worked on the two ferry vessels were covered by the Ports Award, and the employees on the Rottnest Island service, which it characterised as a ferry, were also covered by the Ports Award.
[13] The consequence of this was, the CFMMEU submitted in relation to its second ground of appeal, that Vyscot failed to comply with s 180(5) because it did not explain to its employees which provisions of the Ports Award were varied or excluded by the Agreement. In relation to the third ground of appeal, it was also submitted that it followed that the Agreement did not pass the BOOT in respect of those employees covered by the Ports Award, since the Agreement was demonstrably less beneficial than the Ports Award as to rates of pay, allowances and the span and pattern of ordinary hours. Alternatively, even if the Ports Award did not apply to any current employees, it might apply to prospective employees because the classifications in the Agreement encompassed work under the Ports Award as well as under a number of other maritime awards. In each case, Agreement would fail the BOOT in relation to prospective employees.
Consideration
[14] We consider that the appeal grounds lack sufficient merit to justify the grant of permission to appeal. As to the first ground of appeal, on the facts as found by the Commissioner it is clear that the Ports Award did not apply to Vyscot or the employees covered by the Agreement at the BOOT “test time”(that is, at the time the application for approval of the Agreement was made 3) by reason of the exclusion in clause 4.1(g) of the Ports Award. The Commissioner found, as earlier stated, that seven of Vyscot’s ten vessels undertake wholly marine tourism work and another performs primarily marine tourism work. The Form F17 declaration which accompanied the application for approval of the Agreement discloses that 60 employees were covered by the Agreement at the time it was made. The CFMMEU’s submissions contend that approximately seven employees plus “an unspecified number” of employees working on the single vessel undertaking the Rottnest Island service are not covered by the Marine Tourism Award. Thus, taking the CFMMEU’s case at its highest, it must nevertheless follow (and the CFMMEU must be taken to concede) that Vyscot and a very substantial majority of its employees are covered by the Marine Tourism Award. That attracts the operation of clause 4.1(g) of the Ports Award, which excludes from the coverage of the Ports Award “employers and employees wholly or substantially covered” by the Marine Tourism Award. The CFMMEU’s submission that this exclusion applies only where all employees are covered by the Marine Tourism Award cannot be accepted; the exclusion only makes sense if it is read as meaning that the exclusion applies where an employer and all or a substantial majority of its employees, treated as a collective, are covered by the Marine Tourism Award. That is consistent with the way the exclusionary provision of clause 4.1 of the Ports Award was applied by the Full Bench in MUA v Sea Swift Pty Ltd.4 The Full Bench decision in Noorton is entirely distinguishable because in that case all or at least the large majority of the employer’s employees were working on passenger ferry services and were covered by the Ports Award.
[15] This conclusion as to the first ground of appeal also disposes of the CFMMEU’s third ground of appeal concerning the BOOT insofar as current employees are concerned. In respect of prospective employees, it is conceivably possible that the mix of Vyscot’s business may change in the future such that marine tourism no longer constitutes a substantial majority of its business, in which case employees engaged in passenger transport work at that time may become covered by the Ports Award. However the comparison which the BOOT requires is with the relevant award as at the test time. Potential future changes in award coverage are not relevant to the BOOT. We were not taken to the coverage provisions of any other maritime award to demonstrate that it might displace the coverage of the Marine Tourism Award at some time in the future, nor was any argument to this effect advanced before the Commissioner. The third appeal ground has no substance for these reasons.
[16] Once the first and the third appeal grounds are rejected, the second appeal ground falls away. As stated, it is conceivable that the position as to award coverage may change in the future, and it might be said that for that reason, employees should pursuant to s 180(5) have been advised of that possibility and given an explanation as to which terms of the Ports Award would be displaced by the Agreement if that eventuality occurred. However, the obligation in s 180(5) is to “take all reasonable steps” to explain the terms of the agreement and their effect, and we do not think the requirement in this case encompassed dealing with entirely theoretical future possibilities. And, in any event, the main effect of the Agreement here was to replace a preceding enterprise agreement rather than any modern award, so the relevance of any comparison with the Ports Award for the purpose of s 180(5) is diminished even further.
[17] For the reasons given, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr L Edmonds on behalf of the Construction, Forestry, Maritime, Mining and Energy Union.
Mr G Hatcher SC with Ms A Perigo of counsel on behalf of Vyscot Pty Ltd t/a Captain Cook Cruises (WA).
Hearing details:
2020.
Sydney (via telephone):
25 March.
Printed by authority of the Commonwealth Government Printer
<PR718327>
1 [2020] FWCA 209
2 [2018] FWCFB 7224
3 See s 193(6) of the FW Act
4 [2016] FWCFB 651 at [34]
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