Cruise Whitsundays Pty Ltd

[2015] FWCA 5206

[2015] FWCA 5206

FAIR WORK COMMISSION

DECISION

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

Cruise Whitsundays Pty Ltd
(AG2015/3971)

CRUISE WHITSUNDAYS MARINE ENTERPRISE AGREEMENT 2015

Marine tourism and charter vessels
DEPUTY PRESIDENT SAMS	SYDNEY, 3 AUGUST 2015

Application for approval of the Cruise Whitsundays Marine Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Cruise Whitsundays Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Cruise Whitsundays Marine Enterprise Agreement 2015 (the ‘Agreement’). The Agreement was negotiated with the Maritime Union of Australia (the ‘Union’) and six nominated Employee Bargaining Representatives (EBRs). The Agreement is to cover 99 employees working on vessels and pontoons in and around the Whitsundays region in Queensland. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 11 March 2015, and voting for the Agreement’s approval took place between 4 and 6 July 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 48 of the 68 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 16 July 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr R Wait, General Manager – Human Resources, identified the Marine Tourism and Charter Vessels Award 2010 [MA000093] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Waitsaid that the Agreement does provide for one term that is less beneficial than under the Award in that casual employees are subject to a minimum engagement of two hours per day. However, the Agreement provides for a number of terms and conditions that are more beneficial than those under the Award including, higher rates of pay, additional annual leave and enhanced junior rates of pay. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 19 and 20 respectively, and a disputes resolution procedure at clause 18 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 30 July 2015, Mr B Cooper of Livingstones Employment Relationship Advisorsappeared with Mr R Wait for the applicant and Mr A Jacka for the Union. Mr Cooper outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. He explained that the Agreement provides for daily rates of pay which are approximately 16% above the base rates of pay under the Award and that these rates of pay are to be increased by 3% on 1 July of each year during the nominal term of the Agreement. Mr Jacka supported the submissions of Mr Cooper. The Union had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement.

[5] Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Cruise Whitsundays Marine Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 6 August 2015 and have a nominal expiry date of 6 August 2018.

DEPUTY PRESIDENT

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