Fantasea Pty Limited T/A Fantasea Cruising
[2020] FWC 2720
•25 MAY 2020
| [2020] FWC 2720 |
| FAIR WORK COMMISSION |
INTERIM DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Fantasea Pty Limited T/A Fantasea Cruising
(AG2019/3006)
DEPUTY PRESIDENT BOYCE | SYDNEY, 25 MAY 2020 |
Application for approval of the Fantasea Masters, Coxswains and Deckhands Enterprise Agreement 2019 — dispute as to modern award coverage for purposes of BOOT – Fantasea covered by the Marine Tourism and Charter Vessels Award 2010, not the Ports Harbours and Enclosed Vessels Award 2010 – BOOT concerns rejected – allegations as to non-compliance with ss.180(5) and 188 of the Fair Work Act 2009 rejected.
Introduction
[1] An application for approval of the Fantasea Masters, Coxswains and Deckhands Enterprise Agreement 2019 (Agreement) (pursuant to s.185 of the Fair Work Act 2009 (Act)) was filed with the Fair Work Commission’s (Commission) Registry in Sydney on 15 August 2019.
[2] The Agreement is a single enterprise agreement. It covers and applies to the Applicant, Fantasea Pty Ltd (Fantasea), and relevant employees engaged by it as Masters, Deckhands, Marine Engine Driver Coxswains or Juniors (Under 18).
[3] In support of the approval of the Agreement, the documents filed by Fantasea were:
(a) Form F16 dated, 15 August 2019;
(b) Form F17 executed by Mr Stuart Bicknell, (then) General Manager Fantasea, dated 13 August 2019, with annexed materials (F17); and
(e) a copy of the Agreement.
[4] By way of separate Form F18s, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), and the Australian Maritime Officers Union (AMOU), respectively declared that they were bargaining representatives for the Agreement, sought to be covered by the Agreement, but opposed the approval of the Agreement.P0F1
Procedural Background
[5] On 20 August 2019, the matter was allocated to Deputy President Masson.
[6] On 21 August 2019, Deputy President Masson wrote to the Applicant, raising a number of concerns he had regarding the Agreement’s eligibility for approval. Deputy President Masson sought submissions and/or undertakings to resolve those issues. Fantasea responded to those issues on 27 August 2019. Having considered that response, all issues raised by the Deputy President Masson have been resolved (absent any requirement for an undertaking).
Initial directions to parties
[7] On 30 August 2019, the matter was re-allocated by the Commission to my Chambers, although the file was not received by my Chambers until a few days later.
[8] On 12 September 2019 (and following a brief mention held by telephone), I issued directions to the parties regarding the filing and service of submissions and evidence. Those directions provided the CFMMEU and AMOU the opportunity to properly raise their objections to the approval of the Agreement, and for the Applicant to respond to same. Further, the matter was programmed to be heard on 14 and 15 November 2019.
[9] It was agreed by all parties that the matter required a hearing given that evidence was to be contested.
[10] Given the nature of the objections being made, and the contest on the evidence, it was appropriate for me, in the exercise of my discretion as to the manner in which proceedings are to be conducted under s.590 of the Act, to set the matter down for hearing.
Parties applied to have the matter stood over
[11] On 30 September 2019, the CFMMEU wrote to my Chambers and sought to have the directions vacated. The CFMMEU submitted that there had been meaningful discussions between the parties, and that the parties were working through the details of a potential resolution which would address the CFMMEU’s and AMOU’s concerns.
[12] I rejected the CFMMEU’s application to vacate directions made on 12 September 2019, noting that any consent position reached between the parties regarding disputed issues could be addressed in the parties’ submissions or at hearing.
[13] Later that same day, the CFMMEU wrote to my Chambers and sought, in the alternative, an amendment to the directions issued in the matter. I accepted the proposed alternative timetable, and issued amended directions accordingly (with a view to having the matter heard in December 2019).
U
Parties sought to have the matter re-listed and re-programmed
[14] On 31 October 2019, my Chambers contacted the parties and sought an update as to the progress of their negotiations. Later that same day, the Applicant wrote to my Chambers and requested that the matter be re-listed for mention.
[15] Given the availability of the parties, the matter was listed on 12 November 2019 for mention. I held this mention by telephone. It was attended by representatives from all parties. During that mention, it became clear that significant differences between the parties remained, and that the parties were unlikely to reach a compromise or consent position.
[16] As such, I issued amended directions to the parties to put on submissions and evidence regarding their respective positions, with a view to having the matter heard in January 2020. I note that, at that time, the Commission was still not in receipt of any submissions and/or evidence regarding the disputed issues. The timetable for the matter was made by consent between the parties, taking into account their respective limited availability over the Christmas and New Year period.
CFMMEU Form F52 application
[17] On 21 January 2020, the CFMMEU filed a Form F52 (Order for the production of documents) against Fantasea (Production Application).
[18] On 24 January 2020, I held a hearing (by telephone) regarding whether to make the orders sought in the Production Application. Ultimately, the matter was resolved by consent, and Fantasea produced relevant documents.
Substantive hearing and closing submissions
[19] On 30 January 2020, I held a hearing in Sydney. Mr Y Shariff (of counsel), instructed by Ms Rachel Bernasconi of Seyfarth Shaw Lawyers, appeared with permission on behalf of the Applicant. Ms L Doust (of counsel) appeared with permission on behalf of the CFMMEU. Mr M McEvilly appeared on behalf of the AMOU. At the conclusion of this hearing, and at the request of the parties, the matter was programmed to receive closing submissions on the evidence, and listed for further hearing to address the Commission in respect of those submissions. Again, it was appropriate for me, in the exercise of my discretion as to the manner in which proceedings are to be conducted under s.590 of the Act, to set the matter down for further hearing.
[20] On 25 March 2020, a further hearing was conducted by telephone (due to the COVID-19 restrictions).
[21] Pursuant to s.596 of the Act, I granted permission to Fantasea and the CFMMEU to be legally represented in the proceedings generally. I granted such permission on the basis that the hearing would be conducted more efficiently given that the issues before me were sufficiently complex to warrant the assistance of legal representatives. I note there was no opposition to any party being legally represented.
Union objections to the approval of the Agreement
[22] In summary, the Unions objected to the approval of the Agreement on the basis that the Agreement does not pass the “Better Off Overall Test” (BOOT), and was not genuinely agreed.
[23] In this regard, the Unions assert that the applicable modern award for the purposes of the BOOT is not the Marine Tourism and Charter Vessels Award 2010 (Marine Award) alone, but the Ports Harbours and Enclosed Vessels Award 2010 (Ports Award), or the Ports Award and the Marine Award together. Further, given that Fantasea’s explanation to relevant employees, as to the terms and the effect of the terms of the Agreement, occurred only by reference to the Marine Award, such explanation did not comply with ss.180(5) of the Act, and the Agreement was therefore not genuinely agreed for the purposes of s.188 of the Act.
[24] The Unions accepted that if the Marine Award is the sole applicable award, issues as to non-compliance with the BOOT, and an absence genuine agreement, do not arise.
[25] Fantasea accepted that if the Ports Award alone, or the Ports Award and the Maritime Award are the applicable award/s, issues as to compliance with the BOOT, s.180(5) of the Act, and genuine agreement, mean that the Agreement is incapable of approval.P1F2
Coverage provisions of the Marine and Ports Awards
[26] The coverage of the Marine 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”.
[27] The expression “Marine Tourism and Charter Vessels Industry” (Marine Tourism 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”.
[28] The classifications in the Marine Award are set out in Schedule B to the award. There is no dispute that the classifications under the Agreement fall within the classifications under the Marine Award (i.e. Masters, Deckhands, Marine Engine Driver Coxswains or Juniors (Under 18)).
[29] The coverage of the Ports Award, as relevant to this matter, is set out in clause 4 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”.
[30] The classifications in the Ports Award are set out in clause 13. There is no dispute that the classifications under the Agreement fall within the classifications under the Ports Award (i.e. Masters, Deckhands, Marine Engine Driver Coxswains or Juniors (Under 18)).
Construction of the coverage provisions under the awards
[31] There was no dispute between the parties as to the case law principles, in terms of award interpretation, to be applied in this matter. They are set out at paragraphs [6] to [9] of Fantasea’s Outline of Submissions (dated 14 January 2020), as follows:
“6. The principles of award interpretation are well settled. They are as follows:
(a) an industrial instrument must be read so as to give effect to its evident purpose, despite inconsistencies or infelicities of expression which might tend to some other reading: see Kucks v CSR Ltd (1996) 66 IR 182 at 184 and United Firefighters’ Union v Metropolitan Fire and Emergency Services Board (2006) 152 FCR 18 at [51]–[52];
(b) while the interpretation of an industrial instrument turns on its language, the language used must be understood in the light of its industrial context and purpose: see Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 per Gleeson CJ and McHugh J at [2];
(c) evidence of the conduct of the parties subsequent to the making of the award cannot be relied upon to construe it: City of Wanneroo v Holmes (1989) 30 IR 362 at 378;
(d) however, that is not to say the words of an industrial instrument must be interpreted in a vacuum divorced from industry realities: City of Wanneroo v Holmes (1989) 30 IR 362 at 378. Regard must be paid to the context and purpose of the provision or expression being construed: City of Wanneroo v Holmes (1989) 30 IR 362 at 378. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction: City of Wanneroo v Holmes (1989) 30 IR 362 at 378;
(e) it is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: Kucks v CSR Ltd (1996) 66 IR 182 at 184;
(f) meanings which avoid inconvenience or injustice may reasonably be strained for: Kucks v CSR Ltd (1996) 66 IR 182 at 184;
(g) a court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award: Kucks v CSR Ltd (1996) 66 IR 182 at 184.
7. The principles derived from Kucks v CSR Ltd (1996) 66 IR 182 were approved by the Full court of the Federal Court in Ansett Australia Ltd (subject to Deed of Company Arrangement) v Australian Licensed Aircraft Engineers’ Assn [2003] FCAFC 209 at [8] and by Callinan J in Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [129]- [130].
8. In addition, the principles of statutory interpretation referred to are not inapplicable to an award which seeks, in a way, to legislate for the terms of conditions of employment of a number of persons engaged in a particular industry: Short v F W Hercus Pty Ltd (1993) 40 FCR 511 at 520. In this regard, it is relevant to note that in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-2, McHugh, Gummow, Kirby and Hayne JJ held that:
“…the “primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute.
...
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be useful and pertinent.”
(emphasis added)
9. These principles are apposite to the interpretation of an award as it is appropriate to consider the scope clause of an award in the context in which it appears, and, in particular, by reference to the other provisions of the award: Kanes Hire Pty Ltd v Mitchell [2010] FCA 756 at [26] citing with approval Kingmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks Union of Australia (NSW) (2001) 106 IR 217 at [69].”
[32] I adopt and apply the foregoing case law principles in making my findings in this matter.
[33] Having considered the written and oral submissions of the parties, I approach (resolve) the coverage provisions of the Marine Award (including by reference to the coverage provisions of the Ports Award) as follows:
a) depending upon the particular facts and circumstances of an individual employer, the Marine Award and the Ports Award may have overlapping coverage. An employer and its relevant employees may be covered by more than one of these awards;P2F3
b) notwithstanding (a), the Ports Award “does not cover” employers and employees who are “wholly or substantially” covered by the Marine Award.P3F4P In other words, dual coverage under these awards will not arise where whole or substantial coverage occurs under the Marine Award. The term “substantially” is not to be construed on its own, but is to be construed in the context of the phrase “wholly or substantially”, meaning that the term “substantially” is to be applied, from an evidentiary perspective, as something “less than whole”, “in the main” or “essentially”;P4F5
c) both of the awards are ‘industry’ awards, meaning that the focus, for the purposes of ascertaining award coverage, is upon the business activities of the employer. This is especially or logically so where there is no dispute that employees performing work under either award have matching classifications under each award.P5F6P The work being performed by employees might be considered as part of the factual matrix when determining the business activities of an employer, but only for the purposes of making findings as to those business activities, and inter alia, the ‘industry’ coverage of an employer;
d) coverage under the Marine Award, for the purposes of determining whether an employer falls within the coverage of the Marine Tourism Industry, excludes “the operation of ferries engaged in regular scheduled passenger and/or commuter transport” (Exclusion). But this does not mean that simply because a vessel (ferry) has a regularly scheduled timetable that the Exclusion applies. Much will be gleaned from the purpose to which a vessel is being used, including by reference to the character of the pick-up location or destination;
e) there was a significant contest between the parties as to whether there are two or three limbs that might be satisfied under the definition of the Marine Tourism Industry. The CFMMEU contends there are only two limbs, whilst Fantasea contends that there are three limbs. I prefer the construction based upon three limbs. In this regard:
i) I do not consider that a vessel (boat) used “as a place of or for entertainment, functions, restaurant/food and beverage” is engaged in anything other than a “water orientated tourism, leisure and/or recreational activity”. To construe all of these words together, as opposed to separately, means that the words “water orientated tourism, leisure and/or recreational activity” have no work to do;
ii) whilst there might be said to be some overlap between the terms “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 vessels “engaged in the provision of water orientated tourism, leisure and/or recreational activities”, the terms are not the same. The latter is broader than, and adds to, the former. Construing the coverage of the Marine Award as having three separate limbs gives all of the words under the definition of the Marine Tourism Industry work to do;
iii) the foregoing construction is also consistent with the fact that the coverage (area, incidence, duration) provisions of a former State award (NAPSA), used as the basis for the drafting of the coverage provisions under the Marine Award, contain only two limbs, and do not include the words “engaged in the provision of water orientated tourism, leisure and/or recreational activities”.P6F7P Again, these additional words, inserted during the award modernisation process, must be given work to do;
f) in view of (e), the definition of the Marine Tourism Industry that I apply in respect of this decision, subject to the Exclusion, has three limbs, as follows:
“… the operation of vessels on a day or overnight charter wholly or principally:
A. as a tourist, sightseeing, sailing or cruise vessel (first limb); or
B. as a place of or for entertainment, functions, restaurant/food and beverage purposes (second limb); or
C. engaged in the provision of water orientated tourism, leisure and/or recreational activities (third limb);”
g) it is trite that the ordinary meaning of the words “tourism”, “leisure” and “recreational” are of very wide import;P7F8
h) in relation to the three limbs, and the Exclusion, it is necessary to have particular regard to the manner in which a business seeks to engage its vessels, including from an overall character, purpose and marketing perspective. In other words, whilst it is trite that nearly all vessels are a means of transportation from A to B, I do not accept that it can be said that because a vessel is regularly scheduled, and passengers or commuters can or do use that vessel as a means of transport (in addition to tourists), that the Exclusion automatically applies. To do so would be to ignore the use of a vessel in “tourist”, or “sightseeing”, or “sailing” or “cruise” activities, and/or its engagement in “water orientated tourism, leisure and/or recreational activities” simply because it may be regularly scheduled and/or used by persons in addition to tourists, or in addition to persons engaging (or seeking to engage) in a leisure or recreational activity; and
i) whilst the determination of award coverage under the Marine Award will ordinarily require analysis of the engagement the employer’s vessels, the ultimate finding that is to be made concerns the operation of vessels by the employer’s business on an overall basis. Vessels may well be used by some passengers merely as a means of transportation (i.e. as a ferry service), but the Exclusion needs to be applied having regard to the purpose of the use or engagement of the vessels in the context of a consideration of an employer’s business activities overall.
Decisions concerning the coverage provisions of the Marine and Ports Awards
[34] In determining award coverage in this matter, I have also applied and/or had regard to three decisions of the Commission, and one of the Full Bench of the Australian Industrial Relations Commission (AIRC) (the latter made as part of the award modernisation process).
[35] Firstly, in Re Award Modernisation,P8F9P a Full Bench of the AIRC explained their intention behind the insertion of the coverage provisions in the Ports Award and the Marine Award, including by reference to traditional coverage, as follows:
“[172] We publish a draft Ports, Harbours and Enclosed Water Vessels Award 2010. It covers all marine operations in enclosed waters including ferries, barges, and all other miscellaneous vessels. We consider that tourist based charter operations should be excluded as these are more appropriately combined with seagoing tourist charter operations and covered by an award developed by reference to existing standards in the tourist industry. We deal with this award later.
…
[214] The draft marine tourism and charter vessels award covers vessels engaged 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. The draft applies to such activities conducted both in bays, rivers and estuaries as well as offshore sightseeing involving overnight stays. Coverage of the award does not extend to commercial freight and ferry services, and is not intended to disturb traditional coverage. The Full Bench invites any further submissions in relation to whether further refinement of the award’s coverage is warranted”.P9F10
[36] Secondly, in Cruise Whitsundays Pty Ltd [2014] FWCA 4762 (at [48] to [54]), Deputy President Sams stated:
“Conclusions
[48] In my opinion, the question as to which Modern Award is the underpinning instrument for the purposes of the BOOT (s 193 of the Act) can be appropriately answered by reference to the meaning of ‘principally’ in the definition of the ‘marine tourism and charter vessels industry’ in the Marine Tourism Award and the meaning of ‘substantially’ covered in the exclusion provision in the Ports Award.
[49] The Macquarie Concise Dictionary (Macquarie Dictionary Publishers Pty Ltd, 5th ed, 2009)is my source for the following definitions:
Principally - adjective of principle;
1. first or highest in rank, importance value; etc, chief; foremost
2. something of principal of chief importance
...
Substantially - adjective of substantial;
2. of ample or considerable amount, quantity size; etc.
[50] Plainly, the meaning of both words ‘principally’ and ‘substantially’ do not import any intention that coverage must be wholly or completely referable to the tourism industry. This envisages, as is obvious from the classifications under both Awards, that there may be overlap in classifications under the two Awards. But that is not the point. It is the ‘principal’ or ‘substantial’ nature of the activities and operations undertaken by the employer which is the correct test. That this is so, is demonstrated by the other Awards excluded by Clause 4.1 of the Ports Award. For example, there will be an overlap of some classifications under the Dredging Industry Award 2010 [42TUMA000085U42T] (the ‘Dredging Award’) and the Ports Award. But the principal industry coverage under the Dredging Award is the dredging industry and not the ports, harbour and enclosed water vessels industry.
[51] The Commission accepts, of course, Mr Jacka’s self evident proposition that an employer may be covered by two or more Modern Awards. There are numerous examples of enterprise agreements which are referable, for BOOT purposes, to a number of Modern Awards reflecting different groups or classifications of employees employed by the employer. Similarly, that is really not the point in this case. The issue is whether the Marine Tourism Award is capable by scope, definitions or its coverage of covering all of the employees who would be otherwise covered by the Agreement. Even if Mr Jacka’s alternative submission is correct, at the very least that the employees engaged in a ferry service would be otherwise covered by the Maritime Industry Award, the references to ‘substantially’ and ‘principally’ just discussed cannot be ignored.
[52] Moreover, I accept the applicant’s submission that employees on the ferry service (Masters and Officers) ‘are expected to actively support the passengers’ enjoyment at all times.’ I think this notion draws a realistic distinction between these employees and employees on other more traditional passenger ferry services.
[53] Even so, Mr Hortle and Mr Schwarzel both agree that there are 11-12 employees, who work on the ferry service known as Resort Connections, out of a total of 98 who are to be covered by the Agreement. In addition, I do not understand Mr Hortle’s evidence is contested as to the revenue derived from tourism products as 74% with 26% related to Resort Connections. Given these statistics, I do see how it could be seriously doubted that the ‘principal’ or the ‘substantial’ industry test results in a conclusion that the principal industry engaged in by the applicant is tourism.
[54] Having regard to the relevant Award provisions in both the Marine Tourism Award and the Ports Award, it must follow that the industrial instrument underpinning the Agreement and therefore the relevant comparator for the purposes of the BOOT, is the Marine Tourism Award. I find accordingly”.
[37] In my view, the foregoing approach of Deputy President Sams was correct, and consistent with my approach to the determination of award coverage in this matter.
[38] Secondly, in Construction, Forestry, Maritime, Mining and Energy Union and Vyscot Pty Ltd t/a Captain Cook Cruises (WA)P10F11P(Vyscot), a Full Bench of the Commission made findings concerning the coverage provisions of the Marine and Ports Awards. In this regard, the Full Bench found:
(a) the operation of clause 4.1(g) of the Ports Award does not require all employees of a relevant employer to be covered by the Marine Award. In other words, the exclusionary test is whether one of the listed awards “wholly or substantially” covers an employer and its employees;
(b) whilst it is possible that the mix of a relevant business may change into the future, such that marine tourism no longer constitutes a substantial majority of the business, the BOOT is to be applied “as at test time” (i.e. the time that the relevant enterprise agreement was made (approved by way of vote of a valid majority of employees). Potential changes in award coverage, or speculation as to same, are not relevant for the purposes of the BOOT as at test time;
(c) although there may well be some exceptions, s.180(5) of the Act does not extend to providing an explanation as to theoretical future possibilities.P11F12
[39] I note that the date, for the purposes of assessing the evidence concerning award coverage in this matter, is 15 August 2019 (Test Time).
[40] The CFMMEU has drawn my attention to the decision of the Full Bench of this Commission in Construction, Forestry, Maritime, Mining and Energy Union and Noorton Pty Ltd T/as Manly Fast FerryP12F13P (Noorton). The CFMMEU submits that the circumstances in this matter are very similar to those in Norton. Although I do not agree that the circumstances of this case are similar, even if I accepted that they were similar, Noorton merely stands for the proposition that there must be evidence to determine whether an employer falls within the definition of the Marine Tourism Industry.P13F14P I concur with that proposition.
Evidence and submissions
[41] In addition to the Form F17, Fantasea relied upon the Witness Statement of Mr Stuart Bicknell dated 14 January 2020 (with annexures) (Bicknell Statement). During the hearing, I made an order as to confidentiality in respect of portions of the Bicknell Statement, and his cross-examination, that went to commercially sensitive and/or confidential information between Fantasea and third parties.
[42] In addition to its Form F18, the CFMMEU relied upon the following evidentiary materials:
(a) Witness Statement of Mr Paul Garrett dated 10 December 2019 (with annexures);
(b) Witness Statement of Mr Shane Reside dated 11 December 2019 (with annexures);
(c) Witness Statement of Mr Tomas Fayle dated 11 December 2019 (with annexures);
(d) Witness Statement of Mr Samuel Wayling dated 11 December 2019 (with annexures); and
(e) Witness Statement of Mr Shane Reside in Reply dated 22 January 2020 (with annexures).
[43] The AMOU did not file any evidentiary material in this matter. It relied upon its Form F18, and otherwise supported the submissions and position of the CFMMEU.P14F15P
[44] The CFMMEU relies upon its written submissions dated 10 December 2019, 22 January 2020, 28 February 2020, and 25 March 2020.
[45] Fantasea relies upon its written submissions dated 14 January 2020 and 20 March 2020.
[46] In coming to my decision in this matter, I have had regard to all of the material that has been put before me.
Contest on the evidence – Tourism v Ferry services
[47] It was accepted between the parties that the operations of the Applicant fall within the coverage of the Marine Tourism Award, other than the:
(a) Palm Beach ferry;
(b) Basin ferry;
(c) Broken Bay recreation centre charter (Broken Bay service);
(d) Shopper Hopper Cruise (Shopper Hopper Cruise);
(e) Homebush Bay to Sydney Harbour Cruise (Homebush to Harbour Cruise); and
(f) Water taxi services.
[48] Fantasea accepts that Ports Award notionally covers its Palm Beach and Basin ferry services (i.e. subject to the fact that the Ports Award “does not cover” employers and their employees who are wholly or substantially covered by the Marine Award).
[49] The issues to be resolved by me, by reference to my findings (in this decision) as to the construction of the coverage provisions of the Marine Award and the Ports Award, and having regard to the evidence, come down to whether:
(a) the Broken Bay, Shopper Hopper, Homebush, and/or the Water taxi services fall within the definition of the Marine Tourism Industry; and
(b) whether the overall business activities of Fantasea, wholly or substantially, fall within the coverage of the Marine Award.
The Broken Bay service
[50] The CFMMEU contends that the Broken Bay service concerns “the provision of transport”,P15F16P and thus does not fall within the definition of the Marine Tourism Industry.P16F17P I reject the contention. Whilst the Broken Bay service is a means of transport, its purpose is to transfer school children to school camps (at the Broken Bay Recreational Centre). Camping is a tourist or leisure activity, even if it is done as part of a school curriculum and/or pursuant to life experience teaching provided by a school. The service does not run to a timetable, but is provided on an as needs basis to the client.P17F18P On the evidence, I find that the whole or principal purpose of the Broken Bay service falls within the definition of the Marine Tourism Industry.
The Shopper Hopper Cruise
[51] The CFMMEU argues that the Shopper Hopper Cruise concerns the provision of transport, and thus does not fall within the definition of the Marine Tourism Industry.P18F19P In short, the CFMMEU contends that because some passengers may partake in recreational or leisure activities after they arrive at a destination, this does not bring this vessel service within the definition of the Marine Tourism Industry.P19F20P
[52] Fantasea markets the Shopper Hopper Cruise as a sight-seeing experience with on-board commentary of city sights in an open roof ultra-modern catamaran.P20F21P One “jumps on board” to not only enjoy the experience of the trip (and take photos), but to be dropped off at discount shopping outlets (with or without a restaurant meal add-on) at Birkenhead Point, Circular Quay, and Darling Harbour (the latter two destinations being two major tourist and sight-seeing attractions in Sydney).P21F22P Services are scheduled to allow passengers (shoppers and/or diners) maximum convenience.P22F23P Mr Bicknell points out that this Cruise operates pursuant to an agreement with MIRVAC owned shopping centres, and that the crew on-board assist passengers with their shopping bags, and relay to passengers special or discount shopping offers available at Birkenhead Point.P23F24
[53] On the evidence, I find that the whole or principal purpose of the Shopper Hopper Cruise is that of tourism, leisure or recreation, and the service therefore falls within the definition of the Marine Tourism Industry.
The Homebush to Harbour Cruise
[54] The CFMMEU asserts that the Homebush to Harbour Cruise is a transportation service, and thus does not fall within the definition of the Marine Tourism Industry.P24F25
[55] Fantasea partners with a whole raft of tourism and coach operators in respect of the Homebush to Harbour Cruise. It is a cruise that operates exclusively to tourists returning from the Blue Mountains, departing from Homebush Bay at 5.30PM everyday except Christmas Day, New Year’s Eve and New Year’s Day. The cruise is ‘hosted’ by a crew member, and has on-board commentary.P25F26P
[56] Fantasea marketing information for the Homebush to Harbour Cruise states:
“What better way to end your blue mountains experience than with a Fantasea cruise! With LIVE commentary on board, complete your Sydney experience with a return trip on the Fantasea Homebush Cruise to Circular Quay and Darling Harbour. Introducing our latest service with AAT Kings – Australia, Gray Line Australia and Oz Trails. Join us for a cruise and relax as you make your way down the river admiring the beautiful waterside suburbs, spectacular scenery and the iconic Sydney Harbour Bridge before arriving at Circular Quay and Darling Harbour”.P26F27
[57] On the evidence, I find that the whole or principal purpose of the Homebush to Harbour Cruise is that of tourism, leisure or recreation, and the service therefore falls within the definition of the Marine Tourism Industry. The Homebush to Harbour Cruise is more than just a method of transportation to avoid Sydney traffic congestion.
The Water Taxi service
[58] Fantasea’s Water Taxi service operates sunset and picnic cruises, as well as ad hoc transfers.
[59] It is without doubt that the whole or principal purpose of Fantasea’s sunset and picnic cruises is that of tourism, leisure or recreation.P27F28P Mr Bicknell’s evidence is that “water taxi’s are more of a ‘boutique’ option and are generally used for special events, sightseeing cruises, and transferring tourists around Sydney Harbour”.P28F29P By reference to Fantasea’s confidential revenue table, Mr Bicknell was unable to say what proportion of water taxi revenue was derived from sunset and picnic cruises, what proportion was derived from special events, sightseeing cruises, and transferring tourists, and what proportion was derived from ad hoc passenger transfers.P29F30P However, he did state: “As an observer I would say that there is a predominance of cruises”.P30F31
[60] The CFMMEU submitted that, given the absence of tangible evidence at to the actual split between water taxi use, I am unable make any finding that the whole or principal purpose of the water taxi service falls within the Marine Tourism Industry.P31F32P However, this submission is made in circumstances where the Exclusion under the definition of the Marine Tourism Industry cannot be said to apply as the ad hoc transfers of passengers by vessel (water taxi) are not “regularly scheduled” passenger and/or commuter transport.
[61] All in all, I am prepared to find that the whole or principal purpose of the water taxi service falls within the Marine Tourism Industry. In making this finding:
(a) I only need find that the water taxi service has a ‘principal’ purpose of tourist, sightseeing, sailing or cruising, or be principally engaged in the provision of water orientated tourism, leisure and/or recreational activities;
(b) I note that it is uncontested that the whole purpose of the water taxi sunset and picnic cruises is that of tourism, leisure and/or recreation;
(c) I rely upon and give some, albeit limited, weight to the evidence of Mr Bicknell that a water taxi is generally used for special events, sightseeing cruises, and transferring tourists around Sydney Harbour (to attend restaurants, pubs, beaches or other tourist venues), and are predominantly used for cruises. Whilst Mr Bicknell was challenged as to the basis upon which he made these statements and/or formed such opinions, it was never put to him that he was wrong in this regard. Given Mr Bicknell’s role and oversight of the Fantasea business over many years,P32F33P I accept that he is able to give the evidence that he has in relation to the water taxi services provided by Fantasea, and that I am entitled to rely upon same;
(d) I note that the Exclusion does not apply, in that water taxi services are not regularly scheduled; and
(e) the ordinary meaning of “cruise vessel” would include a water taxi.
Other CFMMEU arguments rejected
[62] In advancing its arguments as to the Fantasea business not wholly or substantially falling within the coverage of the Marine Award, the CFMMEU:
(a) sought to re-characterise and/or reconstruct operational and labour hours on vessel-by-vessel basis;
(b) submitted that revenue and/or labour hours related to vessel use, before and/or after Test Time, was to be included in the determination as to whether Fantasea operates in the Marine Tourism Industry; and
(c) submitted that paid labour hours ought be excluded from labour hour calculations for idle time, and/or for work performed in the commissioning or decommissioning of vessels (e.g. cleaning, maintenance, and related work), again, on a vessel by vessel basis.
[63] Having regard to my determination of the construction of the definition of Marine Tourism Industry, I reject that this is the method by which one determines whether a vessel wholly or principally operates vessels in the Marine Tourism Industry.
[64] In relation to paragraph 62(a) above, it is the business activities of the employer as a ‘whole’ that are the focus. The difficulty with a vessel by vessel analysis is that vessels, from time to time, are used interchangeably. This reality means that any assessment of individual vessels at particular points in time, in isolation from the use of all of the other vessels operating in a business, detracts from a proper conclusion as to overall vessel utilisation.P33F34
[65] In relation to paragraph 62(b) above, the CFMMEU contention is contrary to the Full Bench decision in Vyscot.P34F35P I accept all of Fantasea’s submissions on this issue, as set out at paragraphs [80] to [88] of its closing submissions dated 20 March 2020.P35F36
[66] In relation to paragraph 62(c) above, I do not accept that there is any basis to exclude paid labour hours related to idle time, or, for example, the cleaning and maintenance of vessels for the purposes of ensuring that such vessels are maintained and otherwise ready to engage in vessel services.
Finding as to ultimate issue
[67] In determining whether an employer is operating vessels wholly or principally in the Marine Tourism Industry, and is wholly or substantially covered by the Marine Award, my view is that a combination of actual vessel utilisation (across the whole of an employer’s business) as at Test Time, and revenue percentages as at Test Time, is the appropriate method for assessment. This is not to say that the assessment of labour hours is irrelevant, or ought to never be used for assessment purposes. It is simply to recognise that vessel utilisation, and the revenue from same, are likely, in my view, to be a more simple and accurate gauge of business activities, and their proper characterisation, for the purposes of award coverage determination.
[68] On the evidence in this case, whether one makes the business activity assessment (as at Test Time) of Fantasea’s Marine Tourism Industry operations from the perspective of vessel utilisation (conservatively 70.34 percent),P36F37P revenue (69 percent),P37F38P or labour hours (64 percent),P38F39P the conclusion is that Fantasea operates a substantial majority of its vessels (on an overall basis) wholly or principally in the Marine Tourism Industry, and is therefore wholly and substantially covered by the Marine Award.
Conclusion
[69] On the basis of my reasons for decision, as set out herein, I find that Fantasea is covered, solely, by the Marine Award. It follows that the Marine Award is the award to which the BOOT is to be applied for the purposes of the approval of the Agreement.
[70] Given that the Marine Award covers relevant employees of Fantasea, I am satisfied that the Agreement meets the requirements of s.193 of the Act, and that there has been compliance with s.180(5). I am equally satisfied that the Agreement has been genuinely agreed.
[71] I am also satisfied that each of the requirements of ss 186, 187, 188 and 190 of the Act, as are relevant to this application for the approval of an enterprise agreement, have been met.
[72] A decision approving the Agreement will be issued in due course.
DEPUTY PRESIDENT
Appearances:
Mr Y Shariff (of Counsel), instructed by Ms R Bernasconio of Seyfarth Shaw Lawyers, appeared on behalf of Fantasea.
Mr L Doust (of Counsel), appeared on behalf of the CFMMEU.
Mr M McEvilly appeared on behalf of AMOU.
Hearing details:
Hearings were conducted in Sydney on 30 January 2020 and 25 March 2020.
Printed by authority of the Commonwealth Government Printer
<PR719619>
1 CFMMEU Form F18, 22 August 2019; AMOU Form F18, 22 August 2019.
2 Transcript, 30 January 2020, PN8.
3 See clauses 4.7 of the Marine Award, and clause 4.9 of the Ports Award.
4 See definition of “marine tourism and charter vessel industry” under the Marine Award.
5 Commissioner for Superannuation v Scott (1987) 13 FCR 404 (at 406-408); Also accepting that the term “wholly or substantially” includes something that is “considerable, real, material, weighty, sizeable or nontrivial”, and includes something that can be “substantial without it being a majority or the predominant number”: cf Fantasea’s Submissions, 14 January 2010, at [16] (citing Cole v Minister for Immigration and Border Protection & Anor [2018] FCAFC 66 (at [29]) and National Union of Workers and United Voice [2019] FWC 3751 (at [5]-[6]).
6 Transcript, 25 March 2020, PN218-PN221.
7 Fantasea Closing Submissions, 20 March 2020, at [26]-[29].
8 Fantasea Closing Submissions, 20 March 2020, at [30]-[39].
9 Re Award Modernisation (Award Modernisation Statement (AM2008/25-63)) [2009] AIRCFB 450; (2009) 182 IR 413, 22 May 2009.
10 Ibid, at [172] and [214].
11 [2020] FWCFB 1992
12 Ibid, at [14]-[16].
13 [2018] FWCFB 7224; Transcript, 30 January 2020, at PN25-PN52.
14 [2018] FWCFB 7224, at [46]. See also at [45] and [47].
15 AMOU Submissions, 28 February 2020
16 Transcript, 25 March 2020, PN156.
17 CFMMEU Submissions, 25 March 2020, at [27].
18 Witness Statement of Mr Stuart Bicknell, 14 January 2020, at [44]; The only cross-examination of Mr Bicknell in respect of the Broken Bay service was to suggest to him that he was asserting an opinion that the Broken Bay service was in the Marine Tourism Industry: Transcript, 30 January 2020, PN711-PN712.
19 CFMMEU Submissions, 25 March 2020, at [31].
20 Ibid.
21 Witness Statement of Mr Stuart Bicknell, 14 January 2020, at Annexure ‘SB-4’. See also Exhibits CFMMEU 11 and 12.
22 Ibid.
23 Ibid.
24 Witness Statement of Mr Stuart Bicknell, 14 January 2020, at [22]. I note that Mr Bicknell was cross-examined in respect of his opinion of the Shopper Hopper Cruise being only a matter of his opinion: Transcript, 30 January 2020, PN713. The evidence reveals that Mr Bicknell’s opinion is supported by the evidence.
25 CFMMEU Submissions, 25 March 2020, at [31].
26 Witness Statement of Mr Stuart Bicknell, 14 January 2020, at [23]-[25].
27 Witness Statement of Mr Stuart Bicknell, 14 January 2020, at Annexure ‘SB-5’.
28 Witness Statement of Mr Stuart Bicknell, 14 January 2020, at [28](a) and (b), and Annexures ‘SB-10’ and ‘SB-11’.
29 Witness Statement of Mr Stuart Bicknell, 14 January 2020, at [28](c).
30 Transcript, 25 March 2020, PN687.
31 Ibid.
32 CFMMEU Submissions, 28 February 2020, at [68].
33 Witness Statement of Mr Stuart Bicknell, 14 January 2020, at [1]-[16].
34 Fantasea’s Closing Submissions, 20 March 2020, at [78].
35 See paragraphs [38](a) and (b) of this decision above.
36 These submissions concern the contest between the parties to which Fantasea has described as the CFMMEU’s “HCF Contention”.
37 Witness Statement of Mr Stuart Bicknell, 14 January 2020, at [76]-[83]. I also concur with Fantasea’s assessment that these figures are conservative: Fantasea’s Closing Submissions, 20 March 2020, at [77].
38 Witness Statement of Mr Stuart Bicknell, 14 January 2020, at [53]. Noting that due to the replacement of Confidential Annexure ‘SB-19’ (cf paragraph [52] of the Bicknell Statement), the original figure of 63 percent for Tourism revenue was raised to 69 percent: Transcript, 30 January 2020, PN139-PN155.
39 Witness Statement of Mr Stuart Bicknell, 14 January 2020, at [56]. I also concur with Fantasea’s assessment of the same figure being reached on an alternative calculation basis: Fantasea’s Closing Submissions, 20 March 2020, at [72].
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