Quicksilver Connections Limited

[2019] FWCA 6132

[2019] FWCA 6132

FAIR WORK COMMISSION

DECISION

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

Quicksilver Connections Limited
(AG2019/2143)

QUICKSILVER CONNECTIONS AWU ENTERPRISE AGREEMENT 2018

Marine tourism and charter vessels
DEPUTY PRESIDENT BULL	SYDNEY, 3 SEPTEMBER 2019

Application for approval of the Quicksilver Connections AWU Enterprise Agreement 2018.

[1] An application has been filed by Quicksilver Connections Limited(the applicant) for the approval of an enterprise agreement known as the Quicksilver Connections AWU Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement as per s.172(2) of the Act.

[2] A number of undertakings have been provided by the applicant at the request of the Commission in its consideration of whether the Agreement can be approved, regarding the following:

•  Non-engagement of shift workers for the duration of the Agreement;

•  Entitlement of part-time employees to overtime in excess of ordinary hours;

•  Determination of rates of pay for casual employees and apprentices;

•  Wage rates for trainees;

•  Maximum cycle over which ordinary hours may be averaged to be four weeks;

•  No part-time employees to be employed only to work on Saturdays and Sundays;

•  Taking of time off in lieu; and

•  Overtime to be payable to base rate employees who work on a Saturday or a Sunday.

[3] Section 190(3) of the Act provides that the Commission may only accept a written undertaking if is satisfied that the effect of accepting the undertaking is not likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement.

[4] The applicant has been asked to comment on whether the undertakings result in a substantial change to the Agreement. In its response to the Commission, the applicant has stated that all the undertakings provided are minimal and administrative. While this may be correct for some of the undertakings, I do not accept that such a categorisation can be applied to all the undertakings provided.

[5] Whether one or more undertakings represent a substantial change to an Agreement is a question of fact and degree. For example, the undertaking provided regarding a part-time employee’s entitlement to overtime in excess of ordinary hours (undertaking 2) and the undertaking that overtime is payable to base rate employees who work on a Saturday or a Sunday (further undertaking 1) would not appear to be minimal or administrative in nature, nor I suggest would employees covered by the Agreement categorise these undertakings as minimal or administrative.

[6] Notwithstanding the above, I am satisfied that the Agreement, with the undertakings provided, would not be substantially different to the Agreement or involve a wholesale reshaping of the Agreement which was voted upon by employees. Pursuant to s.201(3) of the Act, I note that the undertakings provided by the applicant are taken to be terms of the Agreement.

[7] 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.

[8] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement. A copy of the model consultation term is attached at the end of the Agreement.

[9] 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. A copy of the model flexibility term is attached at the end of the Agreement.

[10] The Australian Workers’ Union (AWU), 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) of the Act, I note that the Agreement covers the organisation. The AWU has approved the undertakings provided by the applicant.

[11] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval. The nominal expiry date of the Agreement is 4 years from the date of approval.

DEPUTY PRESIDENT

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