[2018] FWC 4638

The attached document replaces the document previously issued with code [2018] FWCA 4521 on 7 August 2018. The medium neutral citation and PrintID have been amended.

Associate to Deputy President Sams

8 August 2018

[2018] FWC 4638

FAIR WORK COMMISSION

DECISION

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

Noorton Pty Ltd t/ a Manly Fast Ferry
(AG2017/3080)

DEPUTY PRESIDENT SAMS

SYDNEY, 7 AUGUST 2018

Application for approval of an enterprise agreement – Sydney Harbour services – ferry and marine tourism industries – protracted negotiations over two and a half years – last round of negotiations with employees directly – consistent Union view that Ports, Harbours, Enclosed Waters Award would otherwise apply to employees – NSW Government contract for commuter ferry services – employer also engaged in marine tourism activities, such as whale watching – related proceedings before four members of the Commission – all employees are employed as casuals – narrow vote of employees to approve agreement after unsuccessful votes – identity of employer – whether Notice of Employee Representational Rights (‘NERR’) validly issued – whether employees ‘genuinely agreed’ to the Agreement – valid cohort of employees who voted – whether employees eligible to vote or will be covered by the Agreement – whether Agreement meets the Better Off Overall Test (‘BOOT’) – comparison to correct Modern Award – no doubt as the identity of the employer – no issues as to whether the Agreement was ‘genuinely agreed’ by the employees – long standing casual employees who are regularly engaged – employees who voted were eligible to vote and would be covered by the agreement – detailed BOOT comparisons with rosters and timesheets – further undertakings proposed – agreement would pass the BOOT whether either the Ports Award or the Marine Tourism Award was the reference instrument – some lesser benefits compared to Ports Award outweighed on balance by benefits, including higher rates of pay and optional permanent conversion – BOOT satisfied in respect to existing and future employees (permanent full-time or part-time) – minor undertakings sought for clarity – views of bargaining representatives to be sought before final approval of Agreement.

BACKGROUND

[1] This decision will determine an application filed by Noorton Pty Ltd t/a Manly Fast Ferry (the ‘Company’ or ‘applicant’ or ‘Manly Fast Ferry’), pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’). The application seeks the approval from the Fair Work Commission (the ‘Commission’) of an enterprise agreement agreed to by employees of the applicanton 11 July 2017. The Agreement is titled Manly Fast Ferry – Sydney Harbour Services – On-Board Crew – GPHs and Hosts – Enterprise Agreement 2017 (the ‘Agreement’). The application for approval of the Agreement was filed on 24 July 2017, thereby satisfying the requirements of s 185(3)(a) of the Act.

[2] It would be an understatement to describe the background to this application as protracted and torturous. It has its origins in a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Noorton Pty Ltd t/ a Manly Fast Ferry and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FWC 4638
Decision Date: 7 AUGUST 2018

CaseChat Overview and Summary

The case involves Noorton Pty Ltd trading as Manly Fast Ferry, and the dispute pertains to the application for the approval of an enterprise agreement. The matter was heard by the Fair Work Commission. The central issues revolve around the validity of the Notice of Employee Representational Rights, the genuine agreement of employees to the terms of the agreement, the eligibility and identity of the employees who voted, and whether the agreement meets the Better Off Overall Test (BOOT).

The Commission determined that there were no doubts about the identity of the employer. Additionally, it was clear that the employees had genuinely agreed to the terms of the enterprise agreement. The employees who voted were long-standing casuals regularly engaged by the employer. Furthermore, the Commission found that those who voted were both eligible to vote and would be covered by the agreement. A detailed comparison was made against the correct Modern Award, showing that the benefits of the proposed agreement, despite some lesser benefits compared to the Ports Award, were outweighed by the benefits including higher rates of pay and the option for permanent conversion. The Commission concluded that the agreement would satisfy the BOOT whether it was compared against the Ports Award or the Marine Tourism Award. The minor undertakings proposed by the employer were accepted to provide clarity, and the views of the bargaining representatives were sought before final approval of the agreement.

The Commission granted approval of the enterprise agreement with the minor undertakings proposed by the employer to provide further clarity on certain aspects. The final approval of the agreement was contingent upon obtaining the views of the bargaining representatives.

Orders