[2015] FWCA 5662

The attached document replaces the document previously issued with the above code on 20 August 2015.

A typographical error in the date of the decision’s publication has been amended from ‘120 August 2015’ to ’20 August 2015’

Sean Howe

Associate to Deputy President Sams.

Dated 20 August 2015.

[2015] FWCA 5662

FAIR WORK COMMISSION

DECISION

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

The Trustee for the Wistari Trust t/as Kanimbla Charters
(AG2015/4533)

KANIMBLA CHARTERS ENTERPRISE AGREEMENT

Marine tourism and charter vessels
DEPUTY PRESIDENT SAMS	SYDNEY, 20 AUGUST 2015

Application for approval of the Kanimbla Charters Enterprise Agreement.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by The Trustee for the Wistari Trust t/as Kanimbla Charters (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Kanimbla Charters Enterprise Agreement (the ‘Agreement’). The Agreement is to cover 5 employees who are employed on the applicant’s marine charter vessel, based in Gladstone, Queensland.

[2] The employees were last notified of their representational rights on 12 June 2015 and voting for the Agreement’s approval took place on 24 July 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a vote conducted by a show of hands, all 5 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 4 August 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr B Stobo, Manager identified the Marine Tourism and Charter Vessels Award 2010 [MA000093] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Stobosaid that in comparison to the Award, daily rates of pay are rounded up to the nearest dollar and that there are no less beneficial terms. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 1.7 and 6.5 respectively, and a disputes resolution procedure at clause 6.4 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 14 August 2015, Mr B Stobo appeared for the applicant. Mr Stobo 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. He explained that employees with 12 months satisfactory service were entitled to a 2% increase to the daily rate appropriate to their classification.

[5] Having heard the applicant’s 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 Kanimbla Charters Enterprise Agreement.Pursuant to s 54 of the Act, the Agreement shall operate from 21 August 2015 and have a nominal expiry date of 20 August 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the court was an application by the Trustee for the Wistari Trust, trading as Kanimbla Charters, seeking approval of the Kanimbla Charters Enterprise Agreement. The dispute centred on the terms of the proposed agreement and whether it complied with the necessary legislative requirements for enterprise agreements under the Fair Work Act 2009. The application was heard in the Fair Work Commission, where the Commission was tasked with determining whether the agreement should be certified and made legally binding.

The legal issues that the Commission had to resolve included whether the proposed agreement met the formal requirements under section 231 of the Fair Work Act, such as being in writing and signed by authorised representatives. Additionally, the Commission needed to assess if the agreement involved genuine bargaining between the employer and the relevant employees and whether it contained the appropriate minimum terms and conditions as mandated by the Act. The central focus was on ensuring that the agreement did not disadvantage employees and that it was made in good faith.

After considering the evidence and submissions presented, the Commission found that the proposed Kanimbla Charters Enterprise Agreement met all the necessary statutory requirements. The Commission determined that the agreement had been genuinely bargained and included the appropriate minimum terms and conditions. The Commission also concluded that the agreement did not disadvantage employees and was made in good faith. Consequently, the application for approval of the Kanimbla Charters Enterprise Agreement was approved.

The orders of the Commission included the certification of the Kanimbla Charters Enterprise Agreement, making it a legally binding document between the employer and the employees. The agreement would now govern the employment terms and conditions of the employees covered by the agreement, effective from the date of certification.

The Trustee for the Wistari Trust t/as Kanimbla Charters

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established