Reef Magic Cruises Pty Ltd T/A Reef Magic Cruises

[2014] FWCA 6957

[2014] FWCA 6957

FAIR WORK COMMISSION

DECISION

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

Reef Magic Cruises Pty Ltd T/A Reef Magic Cruises
(AG2014/7545)

REEF MAGIC CRUISES ENTERPRISE AGREEMENT 2014

Marine tourism and charter vessels
DEPUTY PRESIDENT SAMS	SYDNEY, 9 OCTOBER 2014

Application for approval of the Reef Magic Cruises Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Reef Magic Cruises Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Reef Magic Cruises Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with the Australian Institute of Marine and Power Engineers (the ‘Union’) and 21 non-Union Employee Bargaining Representatives. It is to cover 40 employees who are engaged in the provision of tourist cruises based in Cairns, North Queensland. 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 27 June 2014, and voting for the Agreement’s approval took place on 10 - 12 August 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 27 of the 33 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 17 September 2014, thereby satisfying s 185(3) of the Act.

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

• Marine Tourism and Charter Vessels Award 2010 [MA000093];



• Food, Beverage and Tobacco Manufacturing Award 2010 [MA000073];



• Professional Diving Industry (Recreational) Award 2010 [MA000109];



• General Retail Industry Award 2010 [MA000004];



• North Queensland Boating Operators Employees Award - State 2003 [AN140190]



• Masters, Mates and Engineers’ Award, Motor Vessels 2500 B.H.P./1866 kW.B.P. and under - State (Excluding the Port of Brisbane) 2003 [AN140165];



• Engineering Award - State 2002 [AN140107];



• Cafe Restaurant and Catering Award - State (Excluding South-East Queensland) 2003 [AN140052];



• Recreational Diving Industry Award 2001 [AP812348]; and



• Retail Industry Award - State 2004 [AN140257].

[4] Mr Northsaid that the Agreement did not provide for any more or less beneficial terms than the reference instruments. However, this is not strictly the case as employees are paid higher loaded flat daily and hourly base rates of pay. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 1.15 and 2.2 respectively, and a disputes resolution procedure at clause 2.3 provides for conciliation and arbitration by the Commission.

[5] At a hearing of the application on 1 October 2014, Mr T North and Mr Q Kaesehagen appeared for the applicant, Mr B Matthey for the Union and Mr J Partman in his capacity as an employee bargaining representative. The Union had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement. Mr North 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. He explained that overtime was built into the base rates of pay under the Agreement and that these were well in excess of those under the reference instruments. He gave the specific example of the Master IV (Skipper), who was paid a daily rate of pay of $157.34 under the Marine Tourism and Charter Vessels Award 2010, while under the Agreement, the employee would be paid $228.30 per day for a four day on, three day off roster and $239.90 per day for a five day on, two day off roster. Mr Matthey supported the submissions of Mr North and Mr Partman indicated that he was happy with the Agreement.

[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 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Reef Magic Cruises Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 8 October 2014 and have a nominal expiry date of 7 October 2018.

DEPUTY PRESIDENT

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