Sunlover Operations Pty Ltd T/A Sunlover Reef Cruises

[2019] FWCA 7953

[2019] FWCA 7953

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sunlover Operations Pty Ltd T/A Sunlover Reef Cruises
(AG2019/2313)

SUNLOVER REEF CRUISES AGREEMENT 2019 - MARINE.

Marine tourism and charter vessels
COMMISSIONER YILMAZ	MELBOURNE, 22 NOVEMBER 2019

Application for approval of the Sunlover Reef Cruises Agreement 2019 - Marine.

[1] An application has been made for approval of an enterprise agreement known as the Sunlover Reef Cruises Agreement 2019 - Marine (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Sunlover Operations Pty Ltd T/A Sunlover Reef Cruises. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[3] The format of the Notice of Employee Representational Rights (Notice) issued to employees on 29 May 2019 by the employer was not in the format prescribed by the Fair Work Regulations 2009 (the Regulations). Rather it was provided in a previously prescribed format of the Notice. The employer submits that employees genuinely agreed to the Agreement and were not disadvantaged by this procedural error. Pursuant to s.188(2), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the format of the Notice. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

[4] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[5] The Australian Institute of Marine and Power Engineers and the Australian Maritime Officers’ Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

[6] The Agreement is approved and in accordance with s.54, will operate from 29 November 2019. The nominal expiry date of the Agreement is 21 November 2022.

COMMISSIONER

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Annexure A