DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fantasea Pty Limited T/A Fantasea Cruising
(AG2019/3006)

FANTASEA MASTERS, COXSWAINS AND DECKHANDS ENTERPRISE AGREEMENT 2019

Marine tourism and charter vessels
DEPUTY PRESIDENT BOYCE	SYDNEY, 26 MAY 2020

Application for approval of the Fantasea Masters, Coxswains and Deckhands Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement to be known as the Fantasea Masters, Coxswains and Deckhands Enterprise Agreement 2019 (Agreement). The application is made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Fantasea Pty Limited (Employer). The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

[3] I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[4] The Construction, Forestry, Maritime, Mining and Energy Union, and The Australian Maritime Officers’ Union, both being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers these organisations.

[5] Pursuant to s.594(1)(c) of the Act, I make an order that the employee representative signature contained on the signature page to the Agreement (as published) is to be redacted. 1

[6] Pursuant to s.586(a) of the Act, I grant leave for the typographical error at page 23, Appendix 2, Table 1 (Overtime Table) of the Agreement to be amended from “Public Holiday rate” to “Overtime rate”. The published Agreement reflects this amendment.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 June 2020. The nominal expiry date of the Agreement is 31 July 2022.

[8] This Decision is to be read in conjunction with my Interim Decision in [2020] FWC 2720.

DEPUTY PRESIDENT

1 See Australian Workers Union v Oji Foodservice[2018] FWCFB 7501 (at [68]); note also Construction, Forestry, Maritime, Mining and Energy Union v Mechanical Maintenance Solutions Pty Ltd[2019] FWCFB 3585 (at [52]).

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the Fantasea Masters, Coxswains and Deckhands Enterprise Agreement 2019 by Fantasea Pty Limited, trading as Fantasea Cruising. The application sought the endorsement of this agreement under the Fair Work Act 2009. The dispute centred around the terms and conditions of employment for masters, coxswains, and deckhands within the maritime industry, specifically addressing aspects such as wages, working hours, leave entitlements, and other employment conditions. The Fair Work Commission was tasked with assessing whether the agreement met the legal requirements for approval, including provisions related to the 'better off overall test' and the 'independent test'.

The legal issues before the Commission included whether the proposed agreement complied with the statutory requirements under the Fair Work Act. This encompassed verifying that the agreement met the 'independent test', ensuring that it was free from any terms that would be contrary to public policy or contain any discriminatory provisions. Additionally, the Commission had to determine if the agreement satisfied the 'better off overall test', which required that the proposed terms and conditions be at least as good as the applicable award or existing enterprise agreement in terms of pay and conditions. The Commission also examined whether the agreement was the product of genuine bargaining between the parties and whether it included provisions for dispute resolution.

The Fair Work Commission approved the Fantasea Masters, Coxswains and Deckhands Enterprise Agreement 2019, finding that it met all necessary legal criteria. The Commission confirmed that the agreement was the product of genuine bargaining and satisfied both the 'independent test' and the 'better off overall test'. The agreement was deemed to provide fair and reasonable terms and conditions for the employees, ensuring that they were not worse off than they would have been under the applicable award or previous agreement. The Commission was satisfied that the agreement included appropriate dispute resolution mechanisms and did not contain any terms that were contrary to public policy or discriminatory. This approval ensures that the terms and conditions of employment for the specified roles are legally recognised and enforceable.

The final orders of the Commission were to approve the Fantasea Masters, Coxswains and Deckhands Enterprise Agreement 2019, effective from the date of the Commission’s decision. The agreement was to be registered and published in accordance with the Fair Work Act, ensuring its enforceability and accessibility to all relevant parties. The decision provided clarity and legal endorsement for the terms of employment, facilitating a stable and compliant industrial relationship between Fantasea Pty Limited and its employees.

Fantasea Pty Limited T/A Fantasea Cruising

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established