Get Lost Travel Pty Ltd t/as Wildlife Tours

[2015] FWCA 5174

[2015] FWCA 5174

FAIR WORK COMMISSION

DECISION

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

Get Lost Travel Pty Ltd t/as Wildlife Tours
(AG2015/3354)

TURBO TURTLE PTY LTD, GET LOST TRAVEL PTY LTD & AUTOPIA TOURS PTY LTD TOUR GUIDES COLLECTIVE EMPLOYMENT AGREEMENT 2015

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 3 AUGUST 2015

Application for approval of the Turbo Turtle Pty Ltd, Get Lost Travel Pty Ltd & Autopia Tours Pty Ltd Tour Guides Collective Employment Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Get Lost Travel Pty Ltd t/as Wildlife Tours (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Turbo Turtle Pty Ltd, Get Lost Travel Pty Ltd & Autopia Tours Pty Ltd Tour Guides Collective Employment Agreement 2015 (the ‘Agreement’). The Agreement is to cover 32 employees who are employed as Tour Guides based in Victoria. 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 June 2015, and voting for the Agreement’s approval took place on 3 July 2015. The time limits under s 181(2) of the Act are thereby satisfied. In an email-based electronic ballot, all 25 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 17 July 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr P Beames, Tour Operator, submitted that the relevant employees were ‘award free’ but identified the Passenger Vehicle Transportation Award 2010 [MA000063] as a comparator reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Beames said that the Agreement provides for a number of conditions that are in excess of, or are more beneficial than the terms of the relevant reference instruments and that there are no less beneficial terms. However, this is not strictly true, as the Agreement does not provide for penalty rates for work performed on weekends and public holidays and provides for longer ordinary hours of work. However, these have been loaded into higher daily rates of pay and the Agreement provides for accommodation and enhanced meal entitlements while on tour. On balance, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 10 and 9 respectively, and a disputes resolution procedure at clause 11 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 27 July 2015, Ms N Howells-Schramm of the Victorian Employers’ Chamber of Commerce and Industryappeared with Mr P Beames for the applicant. Ms Howells-Schramm 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. She explained that annual increases to rates of pay were at the discretion of the employer, having considered the financial position of the employer, market and award rates of pay and individual performance of employees and subject to a guarantee that the employees’ rates of pay would not fall below the relevant legislative minimum standard.

[5] Having heard the applicant’s 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 Turbo Turtle Pty Ltd, Get Lost Travel Pty Ltd & Autopia Tours Pty Ltd Tour Guides Collective Employment Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 3 August 2015 and have a nominal expiry date of 2 August 2019.

DEPUTY PRESIDENT

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