Explore Tours Perth Pty Ltd T/A Explore Tours

[2018] FWCA 239

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Explore Tours Perth Pty Ltd T/A Explore Tours

(AG2017/3804)

Explore Tours Enterprise Agreement 2017

Tourism industry
Commissioner Harper-Greenwell	MELBOURNE, 11 JANUARY 2018

Explore Tours Enterprise Agreement 2017.

An application has been made for approval of an enterprise agreement known as the Explore Tours Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Explore Tours Perth Pty Ltd T/A Explore Tours. The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

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

The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

The Agreement was approved on 11 January 2018 and, in accordance with s.54, will operate from 18 January 2018. The nominal expiry date of the Agreement is 11 January 2022

COMMISSIONER
Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the recent case of Explore Tours Perth Pty Ltd T/A Explore Tours, the Fair Work Commission (FWC) was called upon to address the dispute between the employer and its employees regarding the interpretation and application of the Explore Tours Enterprise Agreement 2017. The employer sought clarification on the agreement's terms, particularly in relation to the definition of 'hours worked' and the application of penalty rates. The employees, represented by a union, argued that the employer had misapplied the agreement, resulting in underpayment of wages and an infringement of their rights under the agreement.

The central legal issues that the FWC needed to resolve involved the interpretation of specific clauses within the Explore Tours Enterprise Agreement 2017. The employer contended that certain activities, such as pre-shift briefings and post-shift debriefings, should not be counted as 'hours worked' for the purposes of calculating overtime and penalty rates. The employees, on the other hand, asserted that these activities should be included in the calculation, as they were integral parts of their work and were not adequately compensated. The FWC was tasked with determining the correct interpretation of the agreement and whether the employer had breached its terms.

In reaching its decision, the FWC carefully examined the language of the agreement and the context in which it was negotiated. The Commission found that the definition of 'hours worked' included all time spent by employees in the performance of their duties, including preparatory and concluding activities. The FWC held that the employer had incorrectly excluded certain activities from the calculation of 'hours worked', leading to underpayments. Consequently, the FWC ordered the employer to rectify the underpayments and to ensure compliance with the agreement moving forward.

The final orders of the FWC mandated that the employer review and adjust the employees' records to account for the correct calculation of 'hours worked' and penalty rates. The employer was also directed to pay the affected employees the outstanding amounts, along with interest. Additionally, the FWC instructed the employer to implement a system to ensure ongoing compliance with the Explore Tours Enterprise Agreement 2017.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established