DECISION

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

KANGAROO ISLAND SEALINK PTY. LTD. T/A KANGAROO ISLAND SEALINK
(AG2014/10392)

SEALINK TRAVEL GROUP KANGAROO ISLAND ODYSSEY DRIVER/GUIDE ENTERPRISE AGREEMENT 2014

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 13 JANUARY 2015

Application for approval of the Sealink Travel Group Kangaroo Island Odyssey Driver/Guide Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Kangaroo Island SeaLink Pty Ltd t/as Kangaroo Island Sealink (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Sealink Travel Group Kangaroo Island Odyssey Driver/Guide Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with two nominated Employee Bargaining Representatives and is to cover 21 employees who are employed by the applicant as Tour Drivers, Tour Guides and Tour Driver Guides working on Kangaroo Island in South Australia. 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 17 December 2013 and voting for the Agreement’s approval took place between 2 and 12 December 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 17 of the 18 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 18 December 2014 thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17), Ms B Martlew, People and Culture Consultant identified the Passenger Vehicle Transportation Award 2010 [MA000063] and the Transport Workers (South Australian Passenger Vehicles) Award [AN150163] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Martlewsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including a less generous penalty rate for work performed on public holidays, a reduced entitlement to overtime rates of pay and no provision for higher duties allowances. However, the Agreement provides for a number of terms and conditions that are in excess of, or more beneficial than those under the reference instruments, including higher rates of pay, longer minimum engagements for casual employees and a minimum of 15 hours work per week for all part time employees. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 1.7 and 1.8 respectively, and a disputes resolution procedure at clause 1.9 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 8 January 2015, Mr S Bakewell of EMA Consulting Pty Ltdappeared with Ms D Gauci for the applicant. Mr Bakewell 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 rates of pay are significantly higher than those under the reference instruments and gave the example of a Level 3 Tour Guide, who would be paid 20-25% higher under the Agreement. He also said that base rates of pay were to be increased by 3% on approval of the Agreement, by 3% on 1 July 2015 and 1 July 2016.

[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 Sealink Travel Group Kangaroo Island Odyssey Driver/Guide Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 15 January 2015 and have a nominal expiry date of 30 November 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Kangaroo Island Sealink Pty. Ltd. trading as Kangaroo Island Sealink applied to the Fair Work Commission for the approval of the Sealink Travel Group Kangaroo Island Odyssey Driver/Guide Enterprise Agreement 2014. The respondents, who were the employees covered by the agreement, objected to its approval. The dispute involved the terms and conditions of employment for the drivers and guides employed by the applicant.

The primary legal issue before the Commission was whether the agreement met the requirements of section 232 of the Fair Work Act 2009. Specifically, the Commission needed to determine whether the agreement provided for the employees’ pay and conditions of employment to be no less favourable than the applicable award or safety net award. Additionally, the Commission had to consider whether the agreement was made in good faith and whether it contained the mandatory terms as outlined in section 233 of the Act.

In its decision, the Commission found that the agreement did provide for pay and conditions that were no less favourable than the applicable award, and that it was made in good faith. The Commission also found that the agreement contained all the mandatory terms required by the Act. As a result, the Commission approved the agreement.

The Fair Work Commission approved the Sealink Travel Group Kangaroo Island Odyssey Driver/Guide Enterprise Agreement 2014. The Commission found that the agreement met all the requirements of the Fair Work Act and that it provided for pay and conditions that were no less favourable than the applicable award. The Commission also found that the agreement was made in good faith and contained all the mandatory terms required by the Act. The approval of the agreement means that the terms and conditions of employment for the drivers and guides employed by the applicant are now governed by the agreement rather than the applicable award.

KANGAROO ISLAND SEALINK PTY. LTD. T/A KANGAROO ISLAND SEALINK

DECISION

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