Quicksilver Connections Limited

[2019] FWC 2595

[2019] FWC 2595

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Quicksilver Connections Limited
(AG2018/7197)

COMMISSIONER MCKINNON MELBOURNE, 15 APRIL 2019

Application for approval of the Quicksilver Connections AWU Enterprise Agreement 2018 – genuinely agreed - better off overall test – application dismissed.

[1] Application has been made by Quicksilver Connections Limited (the Applicant) under s.185 of the Fair Work Act 2009 (the Act) for approval of a single enterprise agreement known as the Quicksilver Connections AWU Enterprise Agreement 2018 (the Agreement). The Applicant is the employer of employees who would be covered by the Agreement.

[2] The Agreement covers employees who would otherwise be covered by five separate modern awards; namely, the Professional Diving Industry (Recreational) Award 2010, the Marine Tourism and Charter Vessels Award 2010, the Amusement, Events and Recreation Award 2010 (Amusements Award), the Clerks - Private Sector Award 2010 and the Manufacturing and Associated Industries and Occupations Award 2010.

[3] Concerns in relation to the application were notified to the Applicant on 25 March 2019. On 4 April 2019. The Applicant provided its response to those concerns and offered undertakings to deal with particular concerns.

[4] The terms of the Notional Agreement Preserving the Training Award – State and the Notional Agreement Preserving the Order – Apprentices and Trainees Wages and Conditions (Excluding Government Entities) 2003 are incorporated by reference in the Agreement. I am not satisfied that all reasonable steps were taken by the Applicant to ensure that during the access period for the agreement, relevant employees were either given a copy of those documents or that they had access, throughout the access period, to a copy of those materials. The Applicant submits that the documents were accessible by employees during the access period because they were in its office. There is no information before me to suggest that this fact was brought to the attention of employees, or the means of accessing those documents made clear.

[5] An undertaking was given by the Applicant to address concerns about the exclusion of the National Employment Standards. I am satisfied that the undertaking addresses the identified concerns.

[6] Undertakings were also given to address concerns in relation to the better off overall test, having regard to terms of the Agreement dealing with rates of pay, pay and conditions for trainees and apprentices, span of hours, time off instead of overtime, arrangements for part-time and casual employees and an absence of weekend penalties. The undertakings largely address the concerns, but not completely.

[7] I am not satisfied on the information provided that loaded rates of pay for Grade 2 probationary employees are sufficient to compensate for what I understand to be a typical roster, working 7.6 hours per day, from Monday to Sunday. These employees are engaged as Reservation Clerks, Tour Desk Clerks, Storepersons and Multi-skilled Cruise Attendants who would be covered by the Amusements Award. Payment for weekend penalties is factored into the loaded rate of pay.

[8] There are a number of entitlements identified in the Form F17 accompanying the application that are either more beneficial for employees, or not conferred by the relevant modern award. In relation the Grade 2 employees above, I am not satisfied that those entitlements compensate for the lower wages contained in the Agreement.

[9] The penalty rate for working on the four specified public holidays in clause 6.8.1 of the Agreement is more generous than the Award, but that is a contingent entitlement. I am not satisfied that all employees are likely to work on at least one of those public holidays each year. Payment for the remaining public holidays is factored into the loaded rates of pay.

[10] Similarly, language allowances, entertainer allowances, reef allowances and hull scrub allowances are contingent allowances, payable only on the requirement to exercise a particular skill or perform a particular task. Given the nature of roles covered by Grade 2, I am not satisfied that each employee in that class will have the benefit of at least one of these allowances.

[11] On the applicable roster, lunchtime meals are provided to employees but only those working offshore. The penalty for delay in transfer vessels only applies to staff working on Green Island. I am not satisfied that all employees in Grade 2 will be employees who either work offshore or on Green Island.

[12] The sharing of personal leave is, in my view, a neutral consideration because it involves one employee effectively gifting their personal leave to another employee.

[13] The cashing out of long service leave only becomes available to employees after 10 years’ service. I am not satisfied that it can fairly be counted as a benefit that compensates for lower wages for each of the Grade 2 employees in the classifications above.

[14] There is insufficient material before me to establish that the reimbursement of medicals and immunisations is both relevant to the identified Grade 2 employees and of sufficient value to compensate for the reduction in wages. Medical costs appear to be available in limited circumstances (so as to comply with Australian Standard 2299; if required to continue normal duties; or to maintain a coach drivers’ license). There is no information about the value to employees of immunisations for Hepatitis A/B and Annual Flu injections through the Applicant’s nominated medical practitioner.

[15] Clause 7.14 appears to operate as a limited indemnity to employees against any liability for their involvement in the Applicant’s breaches of environmental law. To the extent that it confers a value on employees, the value is both highly contingent and unquantifiable. I do not consider it to carry any weight for the purposes of the better off overall test.

[16] Grade 2 employees in the classifications above can be employed on a part time basis under the Agreement, including to work on weekends only. Under the Amusements Award, the minimum weekly wage would be $374.18 compared to $337.89 under the Agreement. Absent any of the additional entitlements referred to above, I am not satisfied that the Agreement’s loaded rates of pay would leave employees better off overall.

[17] Finally, trainees covered by the Agreement are entitled to the pay and conditions set by the Notional Agreement Preserving the Training Award – State. There is no information before me about the class of traineeships relevant to the Agreement. I am not presently satisfied that each group of trainees will be better off overall under the Agreement.

[18] For the reasons set out above, I am not satisfied that the Agreement was genuinely agreed and I am not satisfied that employees will be better off overall under the Agreement than they would be if the Amusements Award applied to them.

[19] The application is dismissed.

COMMISSIONER

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