Sunlover Reef Cruises Pty Ltd t/as Sunlover Reef Cruises

[2015] FWCA 5165

[2015] FWCA 5165

FAIR WORK COMMISSION

DECISION

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

Sunlover Reef Cruises Pty Ltd t/as Sunlover Reef Cruises
(AG2015/3679)

SUNLOVER REEF CRUISES AGREEMENT 2015 - REEF TOURISM

Marine tourism and charter vessels
DEPUTY PRESIDENT SAMS	SYDNEY, 30 JULY 2015

Application for approval of the Sunlover Reef Cruises Agreement 2015 - Reef Tourism.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Sunlover Reef Cruises Pty Ltd t/as Sunlover Reef Cruises (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Sunlover Reef Cruises Agreement 2015 – Reef Tourism (the ‘Agreement’). The Agreement was negotiated with two nominated Employee Bargaining Representatives (EBRs) and is to cover 36 employees who are employed in the roles of Cruise Attendants, Office Clerks, Reservations staff and Aquatic Staff (Dive Instructors and Marine Biologists). I note that a separate enterprise agreement covers the roles of Master, Mate, Deckhand and Engineer. 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 14 April 2015 and voting for the Agreement’s approval took place on 23 June 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, 18 of the 21 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 25 June 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr C Dawson, Group Accountant, identified the following instruments as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’):

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



• Clerks – Private Sector Award 2010 [MA000002];



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



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



• Recreational Diving Industry Award 2001 [AP812348];



• Clerical Employees Award – State 2002 [AN140067]; and



• Storeworkers and Packers’ Award - Northern and Mackay Division 2003 [AN140278].

[4] Mr Dawsonsaid that the Agreement provides for more generous long service leave entitlements and that there are no less beneficial terms. However, this is not strictly true, as the Agreement does not provide for penalty rates for work performed on weekends and public holidays and provides for longer ordinary hours of work. However, these have been ‘loaded’ into higher rates of pay. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 1.8 and 2.1 respectively, and a disputes resolution procedure at clause 2.2 erroneously refers to Fair Work Australia, which I take as providing for conciliation and arbitration by the Commission.

[5] At a hearing of the application on 24 July 2015, Ms J Duncan appeared for the applicant and Mr M Ridge and Ms N Lowmass in their respective capacities as EBRs. Ms Duncan 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. She explained that rates of pay are to be increased by 2.5% on 1 July 2016 and 3% on 1 July 2017. I note that due to a delay in the proceedings, the applicant agreed to backpay increases due under the Agreement to the first full pay period following 7 July 2015. Ms Duncan also provided the Commission with a comparative analysis demonstrating that, even in light of the removal of penalty rates under the Agreement for work performed on weekends and public holidays, the employees were still better off overall. Mr Ridge and Ms Lowmass supported the submissions of Ms Duncan and indicated that the employees they represented were 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 Sunlover Reef Cruises Agreement 2015 – Reef Tourism.Pursuant to s 54 of the Act, the Agreement shall operate from 31 July 2015 and have a nominal expiry date of 31 July 2018.

DEPUTY PRESIDENT

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