J & J Wallace (Projects) Pty Ltd T/A Big Cat Green Island Reef Cruises

[2022] FWCA 3809

[2022] FWCA 3809

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

J & J Wallace (Projects) Pty Ltd T/A Big Cat Green Island Reef Cruises

(AG2022/4018)

BCGIRC & CHC Enterprise Agreement 2014

Marine tourism and charter vessels
DEPUTY PRESIDENT LAKE	BRISBANE, 28 OCTOBER 2022

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

1. On 23 September 2022, J & J Wallace (Projects) Pty Ltd T/A Big Cat Green Island Reef Cruises (the Applicant) lodged an application to the Fair Work Commission (the Commission) pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the BCGIRC & CHC Enterprise Agreement 2014 (the Agreement), which is a single enterprise agreement with a nominal expiry date of 30 June 2018.

1. The Applicant filed a Form F24 and Form F24A, which provides that the Applicant is one of two entities covered by the agreement. only company covered by the Agreement that employs individuals. J & J Wallace (Tours) Pty Ltd T/A Cairns Habitat Cruises is also covered by the Agreement but does not employ individuals. The Applicant submitted that they first became aware of their employees’ desire to terminate the Agreement on 2 August 2022, during a meeting between the Reservations team, Group Reservations Manager, Team Leader and People and Performance Manager.

1. There are no unions covered by the Agreement.

Consultation with staff

1. The Applicant’s People and Performance Manager, Ms Sharne Waerea, sent an email to employees covered by the Agreement on 26 August 2022. The email asked impacted employees to vote on the termination of the Agreement and provided information regarding the voting process.

1. The letter also encouraged employees to provide feedback and ask questions.

1. On the same date, employees were hand delivered comparison documents showing the different entitlements under the Agreement and the Award that would cover them. Employees who otherwise would be covered by the Marine Tourism and Charter Vessels Award 2020 were provided a table which referred to that award. The employees who otherwise would be covered by the Amusement, Events and Recreation Award 2020 were provided a table which referred to that award.

1. One employee who was absent from work due to illness or injury was not able to be hand delivered the documents mentioned above. That employee received a copy of the relevant comparison table and letter by post.

1. Between 26 August 2022 and 12 September 2022, Ms Waerea consulted and discussed the termination of the Agreement with various employees in person, and via email and telephone.

1. Between 31 August 2022 and 9 September 2022, Ms Waerea convened meetings at the workplace to provide employees with an opportunity to ask questions and have open discussions about the termination process.

1. On 26 August 2022, employees were provided with a ballot paper by hand (except the absent employee, who was posted a copy). It provided that:

a)employees should physically complete ballot papers;

b)once employees completed ballot papers, they were to be placed in the locked ballot box located in the reception back office of Big Cat Green Island check-in at the Reef Fleet Terminal;

c)voting would close on 12 September 2022; and

d)if the employee was not able to attend the ballot box, they could contact me to make other arrangements.

1. On 12 September 2022, the ballot closed. Of the Applicant’s 17 employees, 15 employees cast a valid vote and, of those, 8 approved the termination.

Consideration

1. Section 222 of the Act provides that if a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the Commission for approval of the termination, within 14 days (or a further period allowed by the Commission). The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

1. Section 223 of the Act goes on to provide that the FWC must approve a termination of an enterprise agreement if:

“(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

1. Section 224 of the Act confirms that, if a termination is approved under s.223, the termination comes into operation from the date specified in the decision which terminates the Agreement.

1. Based on the material contained in the declaration filed with the application and the documentation provided, I am satisfied the Applicant has made the application within 14 days of the termination being agreed upon by a majority of its employees, after a period of communication and consultation regarding the effects the termination would have on their employment entitlements.

1. Taking into account all of the circumstances including those in ss.222 and 223, I consider that it is appropriate to terminate the Agreement.

1. Accordingly, I order that the Agreement be terminated and the termination will operate from 12.00 am on 6 November 2022.

1. Access to a copy of this Decision is to be provided to the relevant employees for their information.

DEPUTY PRESIDENT

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