Kangaroo Island SeaLink Pty Ltd T/A Kangaroo Island Odysseys

[2017] FWCA 2902

[2017] FWCA 2902

FAIR WORK COMMISSION

DECISION

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

Kangaroo Island SeaLink Pty Ltd T/A Kangaroo Island Odysseys
(AG2017/478)

SEALINK TRAVEL GROUP KANGAROO ISLAND ODYSSEY DRIVER/GUIDE ENTERPRISE AGREEMENT 2016

Passenger vehicle transport (non-rail) industry
COMMISSIONER HAMPTON	MELBOURNE, 26 MAY 2017

Application for approval of the Sealink Travel Group Kangaroo Island Odyssey Driver/Guide Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Sealink Travel Group Kangaroo Island Odyssey Driver/Guide Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Kangaroo Island SeaLink Pty Ltd T/A Kangaroo Island Odysseys. The Agreement is a single-enterprise agreement.

[2] Following preliminary consideration by the Commission, the application was assigned to me in late April 2017. On 1 May 2017, I conducted a telephone conference of the parties to seek clarification about aspects of the Agreement.

[3] The employer subsequently provided further clarification of the parties’ intentions and proposed formal written undertakings; the relevant parts are set out below:

The employer undertakes THAT:

“…

2. All authorised overtime hours worked by a part-time employee in excess of his/her agreed ordinary hours will be paid at overtime rates as prescribed by the Agreement.

3. The public holiday loading referred to in clause 4.1.1.3 is a loading of 100% on top of the ordinary rate of pay. For the avoidance of doubt, this means that such hours are paid at the rate of 200% of the ordinary rate of pay.

4. Within a 12 month period an employee will be required to work no more than 35% of his/her total hours working at times which would attract a penalty payment under the Passenger Vehicle Transportation Award 2010, which is Saturdays, Sundays, before 6.00am or after 7.00pm, or in excess of 10 hours in a day, or 152 hours on up to 20 days in a 28 day cycle ("roster limit").

5. The Employer will periodically monitor employees' work patterns to ensure the above roster limits are complied with. In addition, the employer will, at least once per annum in relation to all employees, and upon cessation of employment of an employee for any reason, audit the actual hours of work to ensure that the roster limit has not been exceeded. A copy of any of the findings of any such review or audit will be retained by the employer as part of the time and wages records.

6. Where an employee has been rostered to work, or as a result of the reviews and audits required by undertaking 5 above, an employee has been found to have worked in excess of the roster limit, all such hours will be paid at the rate of 150% of the relevant ordinary rate of pay specified in the Agreement.

…”

[4] Formal written undertakings, signed by the employer are appended to the Agreement as approved.

[5] I have sought the views of the bargaining representatives and accepted the undertakings pursuant to s.190 of the Act. I consider that the undertakings do not significantly change the Agreement but are clear and enforceable, and appropriately deal with concerns that I held about whether the instrument met the Better Off Overall Test provided by s.193 of the Act. As a result, the undertakings are taken to be a term of the Agreement.

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

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 June 2017. The nominal expiry date of the Agreement is 30 November 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code G, AE424480  PR593246>