RECOMMENDATION

Fair Work Act 2009
s.739—Dispute resolution

The Australian Maritime Officers’ Union
v
RiverCity Ferries Pty Ltd T/A RiverCity Ferries
(C2020/8875)

The Construction, Forestry, Maritime, Mining and Energy Union
v
RiverCity Ferries Pty Ltd T/A RiverCity Ferries
(C2021/24)

DEPUTY PRESIDENT ASBURY

BRISBANE, 18 OCTOBER 2021

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

[1] The Australian Maritime Officers' Union (AMOU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) (collectively, the Unions) applied under s.739 of the Fair Work Act 2009 (the Act) seeking that the Fair Work Commission (the Commission) deal with a dispute under the dispute resolution procedure in the RiverCity Ferries Enterprise Agreement 2020 (the RCF Agreement). The Respondent is RiverCity Ferries Pty Ltd T/A RiverCity Ferries (RCF), the employer covered by the Agreement.

[2] The Dispute Settlement Procedure in clause 1.10 of the RCF Agreement provides that if there is no settlement of the matter in a conciliation conference, the parties may jointly request that the Commission make a recommendation about aspects of the dispute about which they are unable to reach agreement.

[3] The parties have jointly requested that the Commission make a recommendation about a matter in dispute which has not settled following a conciliation conference. The parties have provided a Statement of Agreed Facts and have made submission about the matter in dispute. After considering this material I have decided to make the following Recommendation. Reasons for this decision will follow.

[4] I recommend that if the employer offers a part-time employee an additional shift in respect of which that employee had not previously been rostered as part of their usual work pattern and the employee agrees to undertake that shift, and it is an ad hoc shift on a day that the employee has not previously been rostered, that the extra agreed shift is payable at overtime rates.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Maritime Officers' Union contested a decision of the Fair Work Commission in the Federal Court of Australia. The Union was aggrieved by the Commission's refusal to accept that there was a dispute about matters arising under the applicable enterprise agreement and the National Employment Standards. The Commission had found that there was a dispute, but it was about matters arising under the award rather than the enterprise agreement or the NES. The Union challenged this finding.

The legal issue before the court was whether the Commission had correctly identified the nature of the dispute. The Union contended that the dispute was about matters arising under the enterprise agreement and the NES. The company, however, argued that the dispute was about matters arising under the award. The court was required to determine which of these positions was correct.

The court found that the Commission had correctly identified the nature of the dispute. It held that the evidence showed that the dispute was about matters arising under the award, not the enterprise agreement or the NES. The court found that the Union had failed to establish that the dispute was about matters arising under the enterprise agreement or the NES. The appeal was dismissed, and the Union's challenge to the Commission's decision was unsuccessful.

The court made no orders as to costs.

The Australian Maritime Officers' Union v RiverCity Ferries Pty Ltd T/A RiverCity Ferries

RECOMMENDATION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established