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)

MANLY FAST FERRY - SYDNEY HARBOUR SERVICES - ON-BOARD CREW - GPHS & HOSTS - ENTERPRISE AGREEMENT 2017

Port authorities
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 decision of the New South Wales Government in late 2008 to put to tender a contract for the…

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.

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Details

Case: [2018] FWCA 4521
Decision Date: 7 AUGUST 2018

CaseChat Overview and Summary

Noorton Pty Ltd, trading as Manly Fast Ferry, applied for the approval of an enterprise agreement in a case heard before the Fair Work Commission. The dispute concerned the validity and terms of an enterprise agreement proposed for employees working in Sydney Harbour services, including commuter ferry services and marine tourism activities such as whale watching. The application arose from protracted negotiations over two and a half years, culminating in a narrow vote by employees to approve the agreement.

The primary legal issues before the Commission were whether the Notice of Employee Representational Rights was validly issued, whether the employees genuinely agreed to the agreement, whether the employees who voted constituted a valid cohort, and whether the agreement met the Better Off Overall Test (BOOT). Additionally, the court had to determine the correct award to compare against the proposed agreement and whether the agreement would satisfy the BOOT under either the Ports, Harbours, Enclosed Waters Award or the Marine Tourism Award.

The Commission found that there was no doubt regarding the identity of the employer. It was also clear that the employees genuinely agreed to the agreement, as evidenced by their narrow vote in favour. The employees who voted were eligible to participate in the vote and would be covered by the agreement. Through detailed comparisons with rosters and timesheets, the Commission determined that the agreement satisfied the BOOT when compared against both the Ports Award and the Marine Tourism Award. While there were some benefits under the Ports Award that were not included in the agreement, these were outweighed by the overall benefits, including higher rates of pay and the option for permanent conversion. The Commission concluded that the agreement would benefit both existing and future employees, regardless of whether they were permanent full-time or part-time.

The Fair Work Commission approved the enterprise agreement in principle, subject to minor undertakings being made for clarity. The Commission also sought the views of bargaining representatives before final approval of the agreement.

Orders