Cruise Whitsundays Pty. Ltd T/A Cruise Whitsundays

[2024] FWCA 4129

[2024] FWCA 4129

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Cruise Whitsundays Pty. Ltd T/A Cruise Whitsundays

(AG2024/4198)

CRUISE WHITSUNDAYS SHORE ENTERPRISE AGREEMENT 2024

Marine tourism and charter vessels
COMMISSIONER TRAN	MELBOURNE, 26 NOVEMBER 2024

Application for approval of the Cruise Whitsundays Shore Enterprise Agreement 2024

1. Cruise Whitsundays Pty. Ltd T/A Cruise Whitsundays has applied for approval of an enterprise agreement known as Cruise Whitsundays Shore Enterprise Agreement 2024 (the Agreement) under s 185 of the Fair Work Act 2009 (Act).

1. The Agreement is a single enterprise agreement.

1. I note that the Notice of Employee Representational Rights was provided to employees on the employer’s letterhead. I am satisfied that I can exercise my discretion to disregard this error under s 188(5) of the Act, as it is a minor technical error and I am also satisfied that employees were not likely to have been disadvantaged by the error.

1. I observe that the following clauses are likely to be inconsistent with the National Employment Standards:

   ·   Clause 20.5.5 – Flexible Working Arrangements may be inconsistent with s 65A(3) of the Act;

   ·   Clause 4.6 – Casual Conversion: does not refer to post 26 August 2024 employee choice provisions; and

   ·   Clause 12.2 – Compassionate Leave: is silent about the entitlement when the employee, their spouse or de facto partner has a miscarriage or gives birth to a stillborn child.

1. I note clause 5.2 of the Agreement, which gives precedence to the NES and am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Employer has provided written undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

1. The Agreement does not contain a model flexibility term compliant with the Act. Under s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement

1. The Agreement does not contain a delegates’ rights term as required by s 205A(1) of the Act, although it does incorporate the Award in Clause 5.1. However, to avoid doubt, the workplace delegates’ rights term in Clause 26A of the Amusement, Events and Recreation Award 2020 is taken to be a term of the Agreement under s 205A(2) of the Act.

1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 3 December 2024.

1. In accordance with the provided undertaking, the nominal expiry date of the Agreement is 3 December 2028.

COMMISSIONER

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