Cruise Whitsundays Pty Ltd

[2016] FWCA 377

[2016] FWCA 377

FAIR WORK COMMISSION

DECISION

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

Cruise Whitsundays Pty Ltd
(AG2015/6642)

CRUISE WHITSUNDAYS SHORE ENTERPRISE AGREEMENT 2015

Retail industry
DEPUTY PRESIDENT BULL	SYDNEY, 20 JANUARY 2016

Application for approval of the Cruise Whitsundays Shore Enterprise Agreement 2015

[1] An application has been made by Cruise Whitsundays Pty Ltd (the applicant) for the approval of an enterprise agreement known as the Cruise Whitsundays Shore Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

[2] The Agreement covers all employees engaged by the applicant under the classifications contained in the Agreement and who would otherwise be covered by the General Retail Industry Award 2010.

[3] On 18 December 2015, the Fair Work Commission (the Commission) wrote to Mr Ben Cooper, the applicant’s representative requesting the applicant address the following concerns identified:

1. Notice of Employee Representational Rights (NERR)

2. Termination Pay

3. Better off overall test (BOOT)

Notice of Employee Representational Rights (NERR)

[4] Section 174 of the Act provides a statutory requirement for the NERR to be in the prescribed format, and the correct content as per Regulation 2.05 of the Fair Work Regulations 2009 (Regulations). The name of employer provided in the NERR was not the legal name of the employer provided on the application (F16) or in cl. 2.1 of the Agreement.

[5] The applicant submitted that it had inadvertently inserted the trading name of the employer on the NERR by omitting the reference to “Pty Ltd”, and although in error, the applicant had substantively identified itself to the relevant employees in relation to the bargaining of the Agreement. On this basis, it was submitted that the error did not mislead the affected employees in any way.

Termination Pay

[6] In respect to the severance pay table provided in cl. 16.3.6 - Termination, an amount of 10 weeks is to be paid for an employee of more than 9 years but not exceeding 10 years. The National Employment Standards (NES) provides that an amount of 16 weeks is to be paid.

[7] The applicant has provided an undertaking such that the severance pay contained within the Agreement is in line with the NES.

Better off overall test (BOOT)

[8] The General Retail Industry Award 2010 (the Award) is the relevant reference instrument with respect to the better off overall test (BOOT) as required under s.186 of the Act.

[9] The rates of pay provided under the Award incorporate weekend penalties, shift penalties and annual leave loading which would otherwise be provided under the Award. The public holiday penalty provided under the Agreement is 150% as opposed to 200% under the Award.

[10] However, the Agreement offers greater entitlements in other respects including:

● Significantly higher rates of pay; and
● Higher overtime hourly rate.

[11] As requested, the applicant provided a number of indicative rosters to support its submission that the applicant rotates its roster cycles to ensure that staff do not work a significant amount of hours on the weekend and public holidays over a 12 month span.

Approval

[12] Taking into account the higher rates of pay, other benefits conferred by the Agreement, and submissions of the applicant, I am satisfied that the Agreement results in employees being better off under the Agreement.

[13] The undertakings provided by the applicant address the concerns raised by the Commission, and are taken to be a term of the Agreement. Copies of the undertakings are attached to this decision at Annexure A.

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

[15] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 27 January 2016. The nominal expiry date of the Agreement is 4 years from the date of approval.

DEPUTY PRESIDENT

Annexure A

Printed by authority of the Commonwealth Government Printer

<Price code A, AE417499  PR576252>