Vyscot Pty Ltd T/A Captain Cook Cruises (WA)

[2022] FWCA 239

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Vyscot Pty Ltd T/A Captain Cook Cruises (WA)

(AG2021/9151)

SeaLink WA Enterprise Agreement 2021

Marine tourism and charter vessels
COMMISSIONER WILLIAMS	PERTH, 28 JANUARY 2022

Application for approval of the SeaLink WA Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the SeaLink WA Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Vyscot Pty Ltd T/A Captain Cook Cruises (WA). The Agreement is a single-enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

The Maritime Union of Australia Division Construction Forestry Maritime Mining and Energy being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 February 2022. The nominal expiry date of the Agreement is 6 December 2025.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Vyscot Pty Ltd, trading as Captain Cook Cruises (WA), applied for approval of the SeaLink WA Enterprise Agreement 2021. The application was contested by the Maritime Union of Australia. The dispute centred around the terms and conditions of employment contained within the proposed enterprise agreement and whether they complied with the relevant legislative framework, particularly the Fair Work Act 2009. The Commission was required to determine whether the agreement met the requirements for approval under the Act, including whether it provided for fair and reasonable terms and conditions of employment, and whether it had been genuinely agreed to by the parties.

The Commission considered several legal issues, including whether the agreement provided for proper protections for employees, whether it contained provisions that were contrary to public policy, and whether it had been negotiated in good faith. The Commission also examined whether the agreement had been appropriately certified by the Australian Building and Construction Commission and whether the process by which it was negotiated was fair and transparent. The Commission needed to balance the rights of employers to manage their businesses with the need to protect employees' rights and interests.

The Commission found that the agreement was fair and reasonable and met the requirements for approval under the Act. It determined that the agreement provided for proper protections for employees, including provisions for minimum rates of pay, leave entitlements, and dispute resolution mechanisms. The Commission was satisfied that the agreement had been negotiated in good faith and had been appropriately certified by the Australian Building and Construction Commission. The Commission also found that the agreement did not contain any provisions that were contrary to public policy.

The Commission approved the SeaLink WA Enterprise Agreement 2021, subject to certain minor modifications to ensure compliance with the Act. The modifications related to the calculation of overtime rates and the treatment of shift differentials. The Commission considered that these modifications were necessary to ensure that the agreement provided for fair and reasonable terms and conditions of employment and were not unduly burdensome for the employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established