Poseidon Sea Pilots Pty Ltd

[2023] FWCA 3984

[2023] FWCA 3984[Note: An appeal pursuant to s.604 (C2023/7882) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Poseidon Sea Pilots Pty Ltd

(AG2023/3450)

POSEIDON SEA PILOTS MARINE PILOT ENTERPRISE AGREEMENT 2023

Maritime industry
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 27 NOVEMBER 2023

Application for approval of the Poseidon Sea Pilots Marine Pilot Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Poseidon Sea Pilots Marine Pilot Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Poseidon Sea Pilots Pty Ltd (Poseidon). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023. The Agreement was made on or after 6 June 2023.

1. The Australian Maritime Officers' Union (AMOU) being a bargaining representative for the Agreement, filed a F18 Declaration stating that it opposed approval of the Agreement. The AMOU’s opposition was because it considered that the Agreement did not meet the minimum NES requirements in relation to public holidays and sought that the Commission seek that Poseidon offer an undertaking to provide employees with 5.5 days off in lieu of working public holidays.[1]

1. The parties consented to have the application determined on the papers.

1. Both parties consider that the employees are not covered by a modern award and are agreement and award-free.

The Public Holidays Issue

1. The Agreement contains no express entitlement to be absent from work on public holidays. Clauses 117-119 deal with public holidays, providing that “obligations in regard to public holidays are as set out in the NES and this Agreement”, that permanent employees are compensated for working public holidays by their remuneration and additional leave, and casual employees who work on a public holiday are entitled to the prescribed casual rate of pay.

1. Part G of the Agreement provides that working hours are in accordance with rosters determined by Poseidon, based on a one week on/one week off arrangement, and ordinary hours may be on any day of the week and at any hour.

1. Importantly, clause 6 of the Agreement provides that:

“This Agreement will be read and interpreted in conjunction with the NES. Where there is an inconsistency between this agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.”

1. Section 114 of the Act provides that an employee is entitled to be absent from work on a public holiday.  The employer is able to request an employee to work on a public holiday if the request is reasonable, and the employee may refuse a request if either the request is not reasonable or the employee’s refusal is reasonable. The meaning of section 114 was recently considered by a Full Court of the Federal Court in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51. Special leave to appeal to the High Court of Australia was refused. The case concerned employees who are rostered to work on a continuous shift basis, operating 24/7, 365 days a year. The employees were engaged under contracts that foreshadowed that they ‘may’ be required to work on public holidays and that payment for this expectation was incorporated into their remuneration.[2]

1. The Full Court determined that a ‘request’ is not synonymous with a requirement to work on public holidays and that under s.114 of the Act:

“An employer can ultimately require employees to work on public holidays who are involved in critical services or where it is desirable (although “not critical”) to remain open on public holidays in circumstances where the employer has satisfied the obligations imposed upon it under ss 114(2) and (3), namely, that it has made a request, that request is reasonable, and in circumstances where an employee’s refusal is not reasonable (taking into account the factors in s 114(4)). There is no preclusion that exists of the kind contemplated by the primary judge.”[3]

1. The Agreement has some similarities with the case before the Full Court, including that the employees are rostered on 7-day rosters to meet operational requirements and their remuneration includes payment for work performed on public holidays. In short, under the Agreement:

(a)   Employees can be required to work as rostered, which may be on any day at any time, including public holidays.

(b)   There is no entitlement under the Agreement for an employee to be absent from work on a public holiday and/or be granted alternative time off in lieu.

(c)   Section 114 of the Act provides that an employee can only be required to work on a public holiday where a request to do so is reasonable, and an employee’s refusal is not reasonable.

(d)   Part G of the Agreement is inconsistent with s.114 of the Act to the extent that it requires an employee to work on a public holiday outside the circumstances provided in s.114.

(e)   Section 114 of the Act is more beneficial than the hours of work provisions in the Agreement.

(f)    Clause 6 of the Act provides that to the extent of an inconsistency between the NES and the Agreement, where the NES provides a greater benefit, the NES will prevail.

(g)   Therefore, Poseidon can only require an employee to work on a public holiday if the obligations under s.114 of the Act are satisfied.

1. In these circumstances, I am satisfied in accordance with s.186(2) of the Act that the terms of the Agreement do not contravene s.55 of the Act. 

The Shift Worker Issue

1. The Commission raised a further issue with Poseidon concerning whether the Agreement was required to include a definition of a shift worker for the purposes of the NES.  However, I am satisfied that marine pilots covered by the Agreement are not shift workers, and do not qualify under s.87 of the Act, for the shift worker annual leave entitlement. In any event, employees covered by the Agreement are entitled to five weeks’ annual leave per year. The attached undertaking offered by Poseidon clarifies that clause 72 of the Agreement provides that full-time employees covered by the Agreement are entitled to 35 days annual leave per year, which means five weeks’ annual leave.

1. The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

1. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. The Australian Maritime Officers' Union (AMOU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 December 2023. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Annexure A

[1] Based on the estimated average number of public holidays an employee would work in a year.

[2] Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51 at [9].

[3] Ibid at [43].

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