Quicksilver Connections Limited

[2014] FWCA 2396

[2014] FWCA 2396

FAIR WORK COMMISSION

DECISION

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

Quicksilver Connections Limited
(AG2014/5070)

QUICKSILVER CONNECTIONS AWU ENTERPRISE AGREEMENT 2014

Marine tourism and charter vessels
DEPUTY PRESIDENT SAMS	SYDNEY, 10 APRIL 2014

Application for approval of the Quicksilver Connections AWU Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Quicksilver Connections Limited (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Quicksilver Connections AWU Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with the Australian Workers’ Union (AWU) and the Australian Institute of Marine and Power Engineers (AIMPE) (collectively, the ‘Unions’). The Agreement is to cover 332 employees who are engaged in the provision of marine tourism services, other than Skippers and Vessel Engineers (who are covered by another enterprise agreement) and senior executives. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 14 January 2014, and voting for the Agreement’s approval took place between 17 and 19 March 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, 161 of the 199 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 27 March 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr T Baker, Managing Director, identified the following instruments as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’)

● Clerks - Private Sector Award 2010 [MA000002];
● Professional Diving Industry (Recreational) Award 2010 [MA000109];
● North Queensland Boating Operators Employees Award - State 2003 [AN140190];
● Retail Industry Award - State 2004 [AN140257];
● Clerical Employees Award - State 2002 [AN140067];
● Passenger Vehicles Drivers Etc. Award - Northern and Mackay Divisions - 2003 [AN140202]
● Cafe Restaurant and Catering Award - State (Excluding South East Queensland) - 2003 [AN140052]; and
● Recreational Diving Industry Award - State 2001 [AP812348].

[4] Mr Bakersaid that the Agreement provides for some terms and conditions that are less beneficial than those under the reference instruments, including the removal of penalty rates for work performed on Saturdays and Sundays for clerical employees and a less generous language allowance for diving employees. However, the Agreement provides for a number of terms and conditions that are in excess of, or more beneficial than those under the reference instruments, including higher rates of pay, the provision of a number of allowances not conferred under the reference instruments, and the provision of immunisations and meals. It was also said that other benefits were the ability to cash out annual and long service leave in certain circumstances. Rates of pay are to be increased by 3% on 1 April 2014, 1 April 2015, 1 April 2016 and 1 April 2017. I am satisfied that the Agreement passes the BOOT. The Agreement provides for a disputes resolution procedure at clause 2.7 which provides for conciliation and arbitration by the Commission. However, the Agreement does not contain the mandatory flexibility or consultation clauses and pursuant to ss 202(4) and 205(2) of the Act, the model flexibility clause and the model consultation clause become terms of the Agreement.

[5] At a hearing of the application on 9 April 2014, Mr B Cooper, Solicitor,appeared with Mr B Cave, Mr T Clarke and Ms T Pinches for the applicant, Ms S Schinnerl and Ms S Winn for the AWU and Mr B Matthey for AIMPE. The Unions had each filed Declarations in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that they wish to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Unions are to be covered by the Agreement. Mr Cooper outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. The AWU had raised a concern in its Form F18 that the dispute resolution clause set out that employees were only able to have a witness present at any stage during the procedure, rather than as a representative. In response, Mr Cooper offered to provide an undertaking that all employees would be entitled to be represented at any stage of the dispute resolution procedure. The Unions agreed to this undertaking. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’. Ms Schinnerl and Mr Matthey supported the submissions of Mr Cooper.

[6] Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187, 188, 190, 191 and 192 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Quicksilver Connections AWU Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 16 April 2014 and have a nominal expiry date of 15 April 2018.

DEPUTY PRESIDENT

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