SeaLink Northern Territory Pty Ltd

[2020] FWC 2744

[2020] FWC 2744

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

SeaLink Northern Territory Pty Ltd
(AG2020/1178)

COMMISSIONER PLATT ADELAIDE, 27 MAY 2020

Application for approval of the SeaLink NT Enterprise Agreement 2019 - 2023.

[1] An application has been made for approval of an enterprise agreement known as the SeaLink NT Enterprise Agreement 2019 - 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by SeaLink Northern Territory Pty Ltd (SeaLink). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 7 May 2020.

[3] On 12 May 2020, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The issues included:

•  The witnessing of the Form F18 Statutory Declaration by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU)

•  The information contained on the signature page

•  The late lodgement of the application

•  The interaction of clause 38.8 of the Agreement and s.194 of the Act

•  The interaction of clause 38.12 of the Agreement and s.94(4) of the Act

•  Concerns that the aggregate rates of pay did not meet the better off overall test (BOOT)

•  Concerns about whether the Juniors and Trainees provisions met the BOOT

[5] On 18 May 2020, SeaLink provided an undertaking. The undertaking contained a reconciliation clause which provided for a review against the Award after 16 weeks.

[6] On 19 May 2020, the CFMMEU raised a number of objections to the approval of the Agreement including whether the BOOT test had been met, and if Sealink’s undertaking represented a substantial change to the Agreement. Prior to the hearing the CFMMEU provided information in relation to additional rosters and BOOT calculations.

[7] On 26 May 2020 a hearing was conducted. Mr Eleftheriou represented SeaLink with permission pursuant to s.596(2)(a) of the Act. Ms Piper also attended. Mr Burford represented the CFMMEU and Mr Kennedy (an employee bargaining representative) attended.

[8] A discussion was had concerning the BOOT test calculations, the remaining issues having been satisfactorily addressed. SeaLink accepted that when employees worked the rosters contained in the CFMMEU’s calculations, the BOOT test would not be met. The information provided by the CFMMEU, which was validated by the Commission’s internal resources, indicated Deckhands, Engineers and Master Grade 3s who worked the Mandorah 3 roster for a period of 4 weeks would fail the BOOT by between 6.53% to 11.81%. Deckhands who worked the Tiwi roster over a period of 4 weeks would fail by 5.04%.

[9] SeaLink conceded that the CFMMEU’s calculations were correct.

[10] It is apparent that the Agreement without an undertaking fails the BOOT.

[11] SeaLink proposed the following undertaking to address the BOOT issue:

“The Employer will conduct a pay reconciliation every 16 weeks (within two days of the end of the roster cycle) for all employees who are engaged to work on the weekend and/or public holidays within that 16-week period to ensure that they are not paid less than what they would be entitled to under the Ports, Harbours and Enclosed Water Vessels Award 2010 (“Award”). Any shortfall in wages and/or entitlements will be paid with an extra 1% on the Award payment calculation to the employee in the next pay period.”

[12] The CFMMEU and Mr Kennedy supported the acceptance of this undertaking with respect to the BOOT concerns. The CFMMEUs concern in relation to the undertaking representing a substantial change was not pressed and I am satisfied that the undertakings proposed do not represent a substantial change.

[13] At the hearing SeaLink advised that the maximum pay-cycle length under the Award was two weeks.

[14] The decisions as to the acceptance of the reconciliation type undertakings indicate that it requires the Commission to balance the disadvantage, the length of the delayed payment and the additional payment. 1 In Casinos Austria International (Cairns) Pty Ltd T/A The Reef Hotel Casino2 Deputy President Coleman stated:

“As was noted in Beechworth, the inevitable consequence is a delay in payment to an employee which may not be rectified in full by later repayment. I note that the proposed clause provides for reimbursement in the case of a shortfall as against the award (save for the employees excluded by clause A.2.3), plus an additional quarter of one percent of the relevant amount. However, it does not appear to me that this would necessarily offset the detriment of the delay in payment, even taking into account the current low level of interest rates.”  

[15] The concern here is that those employees who would be disadvantaged by working the Mandorah 3 or Tiwi rosters may suffer a 5.04% to 11.81% for up to 16 weeks and then receive only 1% in addition to the Award.

[16] The current undertaking does not satisfy me that the BOOT test has been met. Options to remedy this issue include reducing the period in which the reconciliation is conducted and/or increasing the over Award percentage paid. SeaLink advised at the hearing that it would not reduce the period.

[17] I am not presently satisfied that all employees that would be covered by the Agreement would be better off overall as required by s.186(2)(d) of the Act.

[18] Accordingly, I cannot be satisfied that each of the requirements of ss.186, 188, and 190 of the Act as are relevant to this application for approval have been met.

[19] In the event that I do not receive an amended undertaking that satisfactorily addresses this issue by 4.00pm 1 June 2020, the application will be dismissed.

COMMISSIONER

Appearances:

M Eleftheriou on behalf of the Applicant.

A Burford on behalf of the Construction, Forestry, Maritime, Mining and Energy Union.

G Kennedy employee bargaining representative.

Hearing details:

2020.
Adelaide:
May 26.

Printed by authority of the Commonwealth Government Printer

<PR719652>

 1   Shop, Distributive and Allied Employees Association v Beechworth Bakery Employee Co Pty Ltd t/a Beechworth Bakery[2017] FWCFB 1664; see also Gallis Pty Ltd T/A Cucina By Toscanis [2018] FWC 1407; Casinos Austria International (Cairns) Pty Ltd T/A The Reef Hotel Casino [2017] FWC 5247

 2   [2017] FWC 5247