Remick Pty Ltd T/A Pro Dive Cairns
[2020] FWCA 2441
•1 JUNE 2020
| [2020] FWCA 2441 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Remick Pty Ltd T/A Pro Dive Cairns
(AG2020/699)
PRO DIVE CAIRNS ENTERPRISE AGREEMENT 2020
Diving services | |
DEPUTY PRESIDENT LAKE | BRISBANE, 1 JUNE 2020 |
Application for approval of the Pro Dive Cairns Enterprise Agreement 2020.
[1] An application has been made for approval of an enterprise agreement known as the Pro Dive Cairns Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Remick Pty Ltd T/A Pro Dive Cairns. The Agreement is a single enterprise agreement.
[2] On the 20th March, Mr Lee Norris, a Solicitor acting for the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), which was a bargaining representative for the Agreement, lodged a Form F18 stating that it opposed approval of the agreement but sought to be covered by it. The CFMMEU’s Form F18 identified several matters of concern with the Agreement.
[3] On the 23rd March, Ms Tracey Ellis, an Organiser for the Australian Maritime Officers’ Union (AMOU), filed a Form F18 statutory declaration declaring that the AMOU was a bargaining representative for the Agreement and declaring that the AMOU opposed approval of the Agreement but sought to be covered by it. The AMOU’s Form F18 also identified several matters of concern with the Agreement.
[4] On the 27th March the matter was allocated to my chambers and on the 1st April my associate wrote to the parties requesting several matters within the Agreement be addressed and a response to be filed by the 8th April, an extension was granted to the Applicant to the 14th April with the Union provided until the 16th April to respond.
[5] The initial matter raised by the CFMMEU was that there had been a recent bargaining dispute between the parties that had been determined by Asbury DP in Australian Maritime Officers' Union, The v Remick Pty Ltd T/A Pro Dive Cairns[2020] FWC 431 which called into question in their minds possible compliance with the BOOT test. This was further complicated by a lack of clarity, suggested by the CFMMEU, of the relevant Award applicable to employees.
[6] The Applicant is in the business of providing services for recreational divers. They are certified through the global diving organisation PADI. This association provides global certification of individual divers and specific training programs that are delivered through authorised companies such as Pro Dive. The Applicant provides a range of courses and experiences from dive training, and certification in various levels of proficiency through to diving expeditions for 1 to 7 days from one of their own vessels.
Pre-Approval
[7] The employer provided further material in submissions to support their contention that they had taken all reasonable steps to explain the effect of terms of the Agreement to employees. The Applicant submitted the Agreement was in most matters a rollover document from the previous 2014 agreement. They negotiated with the bargaining representatives over several months and following that a summary document was provided to the employees and meetings were held with employees to explain the proposed agreement during the access period. Furthermore, the Applicant presented information regarding the steps they had taken to the particular circumstances and needs of relevant employees that satisfied the commission.
[8] I am satisfied that the company took all reasonable steps to explain the terms of the agreement and their effect and that the company has complied with s.180(5) and s.188 of the Act.
Relevant Award and BOOT
[9] The Applicant submitted that the relevant award was the Professional Diving Industry (Recreational) Award 2010 (the Dive Award) and the Amusement, Events and Recreation Award 2010. This was contested by the CFMMEU and the AMOU as it related to the Masters of the vessel which they purported to be considered under the Marine Tourism and Charter Vessels Award 2010 (the Marine Award).
[10] The Applicant proposed that the employees who act as vessel Masters be considered as engaged as Dive Masters under the Dive Award who undertake skippering duties. They provided a Job Description and submissions in support of this contention.
[11] The Applicant submitted that Clause 4.1 of the Marine Award provides that it covers “… employers throughout Australia in the Marine Tourism and Charter Vessels Industry and their employees in the classifications listed in clause 13—Minimum wages to the exclusion of any other modern award.”
[12] The Applicant further submitted that Clause 3 of the Marine Award defines the marine tourism and charter vessel industry to mean “... the operation of vessels engaged on a day charter or for an overnight charter wholly or principally as a tourist, sightseeing, sailing or cruise vessel and/or as a place of or for entertainment, functions, restaurant/food and beverage purposes engaged in the provision of water orientated tourism, leisure and/or recreational activities but does not include the operation of ferries engaged in regular scheduled passenger and/or commuter transport.” The Applicant submitted that the Oxford Dictionary defines “charter" to mean "the hiring of an aircraft, ship or motor vehicle.”
[13] The Applicant submitted it provided dive instruction and tourism services to customers using its pool and the vessels in its fleet and does not hire out its vessels. The Applicant submitted that at no time during a voyage do passengers provide direction to the Applicant's employees as to the vessel's direction or location, and as such, the Applicant submitted it is not in the Marine Tourism and Charter Vessels Industry and that the Marine Tourism and Charter Vessels Award 2010 does not apply to it or its employees.
[14] The Applicant submitted that in the alternative, if the Commission determined that the Applicant is covered by the Marine Award, the Marine Award must give way to the Dive Award in its application to Masters.
[15] The Applicant submitted Clause 4.8 of the Dive Award provides "Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work” and Clause 4.7 of the Marine Award provides the same provision as clause 4.8 of the Recreational Diving Award set out above. The Applicant submitted that for the reasons above, the Dive Award is more appropriate to the work performed and to the environment in which the employee normally performs the work.
[16] The CFMMEU did not provide detail on their contention that the Award applicable to the Masters was the Marine Award in these proceedings. The AMOU however provided detailed submissions in support of their identical contention.
[17] The AMOU submitted in relation to clause 3 of the Marine Award that most of the passengers onboard the Applicant’s vessels are international tourists participating in overnight charters; diving is a form of water orientated tourism and a leisure activity, and the Great Barrier Reef is a sightseeing destination for tourists. The AMOU submitted this demonstrates that the Applicant’s operations fall under the Marine Award.
[18] The AMOU rejected the Applicant’s submission that the dictionary defines a “charter” as “the hiring of an aircraft, ship or motor vehicle” and submitted that the ordinary person would assume an overnight dive trip would include hiring the ship, crew and equipment. The AMOU used as comparison a fishing charter, where unless otherwise specified the crew is included and they follow the company’s itinerary.
[19] The AMOU rejected the Applicant’s submission that the Master of the vessel must have a Dive Master Qualification, submitting that the Dive Master qualifications have been allowed to go unrenewed for at least the last 4 years, and these qualifications lapsed the Applicant said they did not want to pay for the qualification to be renewed.
[20] The AMOU provided as evidence email correspondence dated the 13th February 2020 which was sent to the Applicant’s HR department. The email read:
“Please send this out to all staff.
Hi everyone
Pro Dive Cairns management is aware that at times the skippers like to switch roles with other staff members assigned the position of Dive Supervisor on specific dives.
The code of practice defines a dive supervisor as follows:
Dive supervisor The person appointed to supervise the diving area whenever divers are in the water. The person should hold a minimum of a current certified assistant qualification from a dive training organisation and should have appropriate experience for the area supervised.
This definition means that anyone assuming the Dive Supervisor role on any dive and/or is logging customers in to the water must either be at minimum, a renewed and insured Divemaster or directly supervised by a staff member who is renewed and insured Divemaster. Any person in this position without the necessary qualifications would raise certain questions in the event an incident occurring while this person was posted in this position.
We have changed the policy PDCDP003 Diver log to reflect these changes.
This change is effective immediately.
Please review these changes to the procedure and feel free to ask any questions if required
Regards
Pro Dive Cairns Management”
[21] That the AMOU submitted the email shows that the Applicant is aware that vessel Masters are not necessarily qualified Dive Masters.
[22] The Applicant did not address this material in their reply submissions. As the matter was heard on the papers with no hearing, I consider it is not contested evidence.
[23] The AMOU concluded that it would be more appropriate for the Masters to be covered under the Marine Tourism Award based on the primary work they perform and the environment in which they perform that work.
[24] I have considered the parties’ submissions as to the appropriate Award and reject the AMOU and CFMMEU’s argument that the Marine Award is the most appropriate. While I consider the Applicant’s submissions that the Master of the vessel must have a Dive Master Qualification cannot be substantiated, and this is a persuasive factor in terms of the applicable Award, I consider the other arguments raised by the Applicant outweigh this point. The employer is clearly in the business of providing services to recreational divers, both on the water and in pool-based activities. The passengers aboard do not direct where the vessels go or what they do.
[25] The arguments put forward by the applicant persuade me that the relevant Awards for the Boot test for all employees should be the Diving Award and the Amusements Award.
[26] The parties had previously been before Asbury DP during a Bargaining Dispute and the outcome was a recommendation/determination upon the meaning of work. The Applicant has adopted Asbury DP’s determination of the definition of work and have instructed employees accordingly and proffered a roster that supports their assertion.
[27] The AMOU and CFMMEU raised a series of objections based upon the Agreement as proposed did not pass the BOOT test. As Asbury DP stated in her decision, “In respect of hours of work and payment, the BOOT is applied by comparing the payment that employees would receive for working particular hour under the agreement and the payment that they would have receiving the same hours at the same time under the relevant award.” 1
[28] Given the Award I consider to be the relevant Award is the Diving Award the substantive objections raised by the CFMMEU and AMOU do not arise. With respect, the CFMMEU and AMOU make comparisons to other Awards that are not the reference instrument.
[29] I consider that the concerns of the CFMMEU and the AMOU have been addressed by the undertakings and submissions provided by the Applicant. In so doing I note the Full Bench decision in Retail and Fast Food Workers Union Incorporated
v Hungry Jack's Australia Pty Ltd t/a Hungry Jack's [2020] FWCFB 1693] (Re Hungry Jack’s) which was recently cited by the Full Bench in Australian Nursing and Midwifery Federation v Armest Pty Ltd T/A Miles Witt Partnership; Australian Workers' Union, The; The Good Shepherd Limited as Trustee for the Good Shepherd Nursing Homes Charitable Trust[2020] FWCFB 2045 (Armest). Relevantly, the Full Bench in Armest (quoting Re Hungry Jack’s) said (my emphasis added):
“[22] However, other grounds of the appeal have substantial merit. Firstly, grounds 1 and 5 allege appealable error on the basis of a failure to provide any reasons as to the implicit rejection of the BOOT concerns raised by the ANMF. The relevant principles as to the need to give reasons were recently summarised by a Full Bench as follows:
“The FW Act does not in terms require that reasons be given for every decision made. Section 601(2) of the FW Act simply provides that the Commission “may give written reasons for any decision that it makes”. However an obligation to give reasons which address material issues of fact and law may arise as an incident of the fundamental requirement upon the Commission to act judicially and provide procedural fairness, and will certainly be implied in any case where the decision significantly affects the rights and interests of relevant persons, the matter is seriously contested and the appeal facility in s 604 is available.”
[23] In this case, where the ANMF had indicated in its Form F18 declaration that it opposed the approval of the Agreement and had provided a detailed exposition as to why it considered that the Agreement did not pass the BOOT, it was necessary for reasons to be given which at least acknowledged the ANMF objection and briefly identified the basis upon which that objection had been rejected. The absence of such reasons makes it impossible for us to exercise the appellate function of determining whether there was any appealable error in the Deputy President’s satisfaction that the Agreement passed the BOOT notwithstanding the matters raised by the ANMF. It cannot be assumed that the Deputy President regarded her acceptance of the undertakings as resolving the matters raised by the ANMF, since the undertakings were directed at the concerns which had been raised in the correspondence of 22 October 2019 by the Deputy President’s chambers. Although there was some overlap between those concerns and the matters raised by the ANMF, the Form F18 identified a much larger range of BOOT issues.”
[30] In line with Armest, I have had consideration of the submissions of the CFMMEU and AMOU and have determined for the reasons outlined in this decision that it is appropriate to reject them. I am persuaded that the Agreement is capable of approval subject to the undertakings provided by the Applicant.
[31] As noted, pursuant to s.190(3), I have accepted undertakings from the employer. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to this decision as Annexure A.
[32] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):
● Clause 5.1.1 – Annual leave provides that employees are entitled to up to 4 weeks of annual leave at the end of each completed year of service in accordance with the NES. This raises the issue that annual leave does not accrue progressively as per s.87(2) of the Act.
● Clause 5.1.6 – Annual leave provides that employees may cash out 2 weeks of annual leave per completed year of service with the consent of the employer in accordance with the Act. This clause does not specifically provide that paid annual leave must not be cashed out if the cashing out would result in the employee's remaining accrued entitlement to paid annual leave being less than 4 weeks; and that each cashing out of a particular amount of paid annual leave must be by a separate agreement in writing between the employer and the employee; and that the employee must be paid at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone. This raises the issue that Clause 5.2.6 does not comply with s.93(2) of the Act.
● Clause 5.2.3(a) – Personal/carer’s leave provides that an employee shall give notice of their inability to attend work prior to the scheduled commencement of their shift or absence which is a more stringent notice requirement than permitted by s107(2)(a) of the Act, which provides that the notice must be given to the employer as soon as practicable (which may be a time after the leave has started).
● Clause 5.2.7(b) – Personal carer’s leave defines ‘immediate family’ for the purposes of personal/carer’s leave and compassionate leave. This definition does not specifically provide that ‘immediate family’ includes a de facto partner and provides a more restrictive definition of ‘immediate family’ for the purposes of personal/carer’s leave and compassionate leave than s.12 of the Act.
● Clause 5.4 – Jury service leave provides that payment for jury service is based on the equivalent average hours per week of the employee. This raises the issue of non-compliance with s.111(2) of the Act, which provides that the employee must be paid at their base rate of pay for their ordinary hours of work.
● Clause 3.2.1 – Public holidays lists the public holidays which employees are entitled to. This list omits Christmas Eve (from 6pm-midnight), and Monday 28 December (an additional public holiday for Boxing Day in 2010), which are both public holidays in Queensland for the purposes of s.115 of the Act.
[33] However, I note that clause 1.4.3 provides that “The Agreement will be read and interpreted in conjunction with the NES. Where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.” I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
[34] The AMOU and CFMMEU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that this organisation wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.
[35] Subject to concerns that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.
[36] The Agreement is approved and, in accordance with s.54 of the Act, will operate from the 8th June 2020. The nominal expiry date of the Agreement is the 1st June 2024.
DEPUTY PRESIDENT
Annexure A.
1 Australian Maritime Officers' Union, The v Remick Pty Ltd T/A Pro Dive Cairns[2020] FWC 431 at [18]
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