J & J Wallace (Projects) Pty Ltd and J & J Wallace (Tours) Pty Ltd t/as Big Cat Green Island Reef Cruises and Cairns Harbour Cruises

[2014] FWCA 5611

[2014] FWCA 5611

The attached document replaces the document previously issued with the above code on 18 August 2014.

References to the title of the enterprise agreement in the preamble and paragraph [1] of the Decision have been amended to correct typographical errors.

Sean Howe

Associate to Deputy President Sams

Dated 21 August 2014.

[2014] FWCA 5611

FAIR WORK COMMISSION

DECISION

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

J & J Wallace (Projects) Pty Ltd and J & J Wallace (Tours) Pty Ltd t/as Big Cat Green Island Reef Cruises and Cairns Harbour Cruises
(AG2014/1988)

BCGIRC & CHC ENTERPRISE AGREEMENT 2014

Marine tourism and charter vessels
DEPUTY PRESIDENT SAMS	SYDNEY, 18 AUGUST 2014

Application for approval of the BCGIRC & CHC Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by J & J Wallace (Projects) Pty Ltd and J & J Wallace (Tours) Pty Ltd t/as Big Cat Green Island Reef Cruises and Cairns Harbour Cruises (the ‘applicants’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the BCGIRC & CHC Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with ten Employee Bargaining Representatives and is to cover 63 employees who are engaged in the applicants’ business providing marine tourist cruises in North Queensland.

[2] The employees were last notified of their representational rights on 13 March 2014 and voting for the Agreement’s approval took place between 21 and 23 July 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 53 of the 56 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 1 August 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr S Davies, General Manager Operations, identified the following instruments as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’):

• Marine Tourism and Charter Vessels Award 2010 [MA000093];



• Passenger Vehicle Transportation Award 2010 [MA000063];



• General Retail Industry Award 2010 [MA000004];



• North Queensland Boating Operators Employees Award - State 2003 [AN140190];



• Masters, Mates and Engineers’ Award, Motor Vessels 2500 B.H.P./1866 kW.B.P. and under - State (excluding the Port of Brisbane) 2003 [AN140165];



• Passenger Vehicle Drivers Etc. Award - Northern and Mackay Divisions - 2003 [AN140202]; and



• Retail Industry Award - State 2004 [AN140257].

[4] Mr Daviessaid 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 provides for a higher loaded base rate of pay, which takes into account overtime rates, penalty rates for work performed on weekends, evenings and public holidays, a number of allowances and annual leave loading. The Agreement also provides for additional personal and annual leave and higher penalty rates for work performed on Christmas Day. Nevertheless, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 1.14 and 2.2 respectively, and a disputes resolution procedure at clause 2.3 provides for conciliation and arbitration by the Commission.

[5] At a hearing of the application on 15 August 2014, Mr S Davies appeared with Mr Q Kaesehagen for the applicants and Mr N Shelley and Mr A Cook appeared in their respective capacities as Employee Bargaining Representatives. Mr Davies 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. He explained that the applicants’ business had been operating for approximately 25 years and that the Agreement was the successor to a number of previous collective agreements. He said that the Agreement provided for increases of 3% in July 2015, 2.5% in July 2016 and 3% in July 2017. Mr Shelley and Mr Cook supported the submissions of Mr Davies and confirmed that they were happy with the Agreement.

[6] Having heard the parties’ 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 BCGIRC & CHC Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 22 August 2014 and have a nominal expiry date of 30 June 2018.

DEPUTY PRESIDENT

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