Reef Magic Cruises Pty. Ltd. T/A Reef Unlimited

[2022] FWCA 3810

[2022] FWCA 3810

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Reef Magic Cruises Pty. Ltd. T/A Reef Unlimited

(AG2022/4019)

Reef Magic Cruises Enterprise Agreement 2014

Marine tourism and charter vessels
DEPUTY PRESIDENT LAKE	BRISBANE, 28 OCTOBER 2022

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

1. On 23 September 2022, Reef Magic Cruises Pty. Ltd trading as Reef Unlimited (the Applicant) lodged an application to the Fair Work Commission (the Commission) pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Reef Magic Cruises Enterprise Agreement 2014 (the Agreement), which is a single enterprise agreement with a nominal expiry date of 7 October 2018.

1. The Applicant filed a Form F24 and Form F24A, which provides that the Applicant is the only company covered by the Agreement that employs individuals.

1. The Applicant has 9 employees that are covered by the Agreement.

1. The Australian Institute of Marine and Power Engineers is covered by the Agreement. It has advised the Commission that it is neutral on the application as it has no members covered by it at the present time.

Consultation with staff

1. The Applicant’s People and Performance Manager, Ms Sharne Waerea, hand delivered a letter to employees on 26 August 2022, asking them to vote on the termination of the Agreement. In that letter, employees were encouraged to provide feedback, ask questions and arrange individual meetings with Ms Waerea.

1. Attached to the letter was a comparison document which set out various entitlements of the existing Agreement against the applicable award. Employees who would otherwise be covered by the Marine Tourism and Charter Vessels Award 2020 received a comparison table between that award and the Agreement. Employees who would otherwise be covered by the Manufacturing and Associated Industries and Occupations Award 2020 received a comparison table between that award and the Agreement.

1. A ballot paper was also attached to this hand delivered letter. It provided the following information to voters:

a)employees were to physically complete ballot papers;

b)completed ballot papers were to be placed in the locked ballot box located in the reception back office of Big Cat Green Island check-in at the Reef Fleet Terminal;

c)voting would close on 12 September 2022; and

d)if the employee was not able to attend the ballot box, they could contact Ms Waerea to make other arrangements.

1. Between 26 August 2022 and 12 September 2022, Ms Waerea consulted and discussed the termination of the Agreement with various employees in person, and via email and telephone.

1. Between 31 August 2022 and 9 September 2022 Ms Waerea convened meetings at the workplace to provide employees with an opportunity to ask questions and have open discussions about the termination process.

1. On 12 September 2022, the ballot closed. Of the Applicant’s 9 employees, 7 casted a valid vote and 7 approved the termination.

Consideration

1. Section 222 of the Act provides that if a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the Commission for approval of the termination, within 14 days (or a further period allowed by the Commission). The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

1. Section 223 of the Act goes on to provide that the FWC must approve a termination of an enterprise agreement if:

“(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

1. Section 224 of the Act confirms that, if a termination is approved under s.223, the termination comes into operation from the date specified in the decision which terminates the Agreement.

1. Based on the material contained in the declaration filed with the application and the documentation provided, I am satisfied the Applicant has made the application within 14 days of the termination being agreed upon by a majority of its employees, after a period of communication and consultation regarding the effects the termination would have on their employment entitlements. Taking into account all of the circumstances including those in ss.222 and 223, I consider that it is appropriate to terminate the Agreement.

1. Accordingly, I order that the Agreement be terminated and the termination will operate from 12.00 am on 7 November 2022.

1. Access to a copy of this Decision is to be provided to the relevant employees for their information.

DEPUTY PRESIDENT

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