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

[2020] FWCA 209

[2020] FWCA 209

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Vyscot Pty Ltd T/A Captain Cook Cruises (WA)
(AG2019/3222)

SEALINK WA ENTERPRISE AGREEMENT 2019

Marine tourism and charter vessels
COMMISSIONER WILLIAMS	PERTH, 15 JANUARY 2020

Application for approval of the SeaLink WA Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the SeaLink WA Enterprise Agreement 2019 (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 Applicant). The Agreement is a single enterprise agreement.

[2] The Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU or the Union) opposes the application submitting the Agreement does not satisfy the better off overall test (BOOT) and because of Award coverage issues the Agreement was not genuinely agreed to by the employees covered by the Agreement.

[3] Both parties have provided written submissions regarding the Union’s objections. The Applicant’s response to the Union’s objections included statutory declarations sworn by Mr Andrew Lane the Applicant’s General Manager, Western Australia and Ilse Curic the Applicant’s Operations Manager.

Award Coverage

[4] At part 3.1 of the Form F17 filed the Applicant submits that, at the test time, the relevant Award for the purposes of meeting the BOOT was the Marine Tourism and Charter Vessels Award 2010 (the Marine Tourism Award).

[5] The CFMMEU does not dispute that the Marine Tourism Award applies to the Applicant and agrees it is likely to apply to some employees covered by the proposed Agreement.

[6] The CFMMEU submits however that the Marine Tourism Award is not the only Award that applies to employees to be employed under the Agreement.

[7] The CFMMEU submits the Ports, Harbours and Enclosed Water Vessels Award 2010 (the Ports Award) would apply to employees operating the following parts of the employer’s operations:

(a) Ferry Service between South Perth and Barrack Street as a contractor for Transperth;

(b) Ferry service from Fremantle to Rottnest Island;

(c) Ferry service from Barrack Street to Fremantle; and

(d) Ferry service between Point Walter, Barrack Street and Optus Stadium.

[1] The CFMMEU submit these ferry services are excluded from coverage of the Marine Tourism Award and are covered by the Ports Award. Consequently, the Agreement must be compared against the Ports Award and the Marine Tourism Award in order to assess whether the Agreement passes the BOOT.

[2] The CFMMEU submit that in a number of areas the Agreement provides benefits that are less than the Ports Award and consequently the Agreement does not pass the BOOT.

[3] In reply the Applicant submits the Marine Tourism Award applies to employers engaged in the ‘marine tourism and charter vessel industry’.

[4] This is defined by the Marine Tourism Award as:

“… the operation of vessels engaged on a day charter or for an overnight charter wholly or principally as a tourist, sightseeing, sailing or cruise vessel and/or as a place of or for entertainment, functions, restaurant/food and beverage purposes engaged in the provision of water orientated tourism, leisure and/or recreational activities but does not include the operation of ferries engaged in regular scheduled passenger and/or commuter transport.”

[5] The Marine Tourism Award further sets out its coverage in clause 4 and provides no exclusion from its coverage if an employer and its employees are covered by the Ports Award.

[6] The Ports Award contains the following clause in its coverage clause 4:

“This award covers employers throughout Australia in the ports, harbours and enclosed water vessels industry and their employees in the classifications listed in clause 13 to the exclusion of any other modern award. The award does not cover employers and employees wholly or substantially covered by the following awards:

…

(g) the Marine Tourism and Charter Vessels Award 2010.”

[7] The Applicant points out that both awards in question are industry Awards and submits that the Full Bench in MUA v Sea Swift[2016] FWCFB 651 concluded that for industry Awards the crucial element to determine coverage was the industry of the employer.

[8] The Applicant submits that it is clear that, given the Marine Tourism Award remains within the exclusion clause in the Ports Award, an employer cannot be covered by the Ports Award if their industry operations are wholly or substantially covered by the Marine Tourism Award.

[9] The Applicant submits that the Marine Tourism Award applies to all employees to be covered by the proposedAgreement as the Applicant’s industry is wholly or substantially in the marine tourism and charter vessel industry.

[10] This is so the Applicant submits because the evidence is that of the ten vessels operated by the Applicant, seven operate purely within the marine tourism and chartered vessels industry as they are utilised solely for cruises in the provision of tourism, leisure, and recreational services; one operates predominantly within the marine tourism and chartered vessels industry, and two vessels operate in the provision of ferry and commuter services.

[11] In addition, at least 90 per cent of the Applicant’s annual revenue is derived from marine tourism-based activities.

[12] These facts demonstrate that the significant majority of the Applicant’s operations are the provision of tourism, leisure, and recreational services. The Applicant is substantially in the marine tourism and chartered vessels industry, and therefore meets the exclusion in clause 4.1(g) of the Ports Award.

[13] The Ports Award cannot cover the Applicant, and the Marine Tourism Award is the only award that can cover it.

[14] The Marine Tourism Award is therefore the appropriate modern Award for comparison when the Commission considers the BOOT under the Act s.193(1).

[15] On the basis of the above, the Applicant submits the answers given in its Form F17 were accurate and demonstrates the Agreement passes the BOOT when correctly compared to the Marine Tourism Award. Further, given only the Marine Tourism Award can apply to employees to be covered by the Agreement, the explanation provided to employees was satisfactory for the purposes of the Act s.180(5).

[16] The Applicant submits that the Commission should approve the Agreement in accordance with the Act.

Consideration

[17] The relevant coverage provisions in the two awards are set out below.

Marine Tourism and Charter Vessels Award 2010

“3. Definitions and interpretation

3.1 In this award, unless the contrary intention appears:

……..

Marine tourism and charter vessel industry means the operation of vessels engaged on a day charter or for an overnight charter wholly or principally as a tourist, sightseeing, sailing or cruise vessel and/or as a place of or for entertainment, functions, restaurant/food and beverage purposes engaged in the provision of water orientated tourism, leisure and/or recreational activities but does not include the operation of ferries engaged in regular scheduled passenger and/or commuter transport.

4. Coverage

4.1 This industry award covers employers throughout Australia in the Marine Tourism and Charter Vessels Industry and their employees in the classifications listed in clause 13—Minimum wages to the exclusion of any other modern award.”

Ports, Harbours and Enclosed Water Vessels Award 2010

“4.1 This award covers employers throughout Australia in the ports, harbours and enclosed water vessels industry and their employees in the classifications listed in clause 13 to the exclusion of any other modern award. The award does not cover employers and employees wholly or substantially covered by the following awards:

(a) the Maritime Offshore Oil and Gas Award 2010;

(b) the Seagoing Industry Award 2010;

(c) the Port Authorities Award 2010;

(d) the Dredging Industry Award 2010;

(e) the Stevedoring Industry Award 2010;

(f) the Marine Towage Award 2010; and

(g) the Marine Tourism and Charter Vessels Award 2010.

For the purpose of clause 4.1, ports, harbours and enclosed water vessels industry means the operation of vessels of any type wholly or substantially within a port, harbour or other body of water within the Australian coastline or at sea on activities not covered by the above awards.” (Underlining added)

[1] Both of the above Awards define their respective coverage in terms of the industry of the employer.

[2] Considering the evidence as to the activities of the Applicant’s vessels and the sources of its annual revenue I find that the Applicant and its employees are substantially engaged in tourist, sightseeing, entertainment, functions, water-oriented tourism and leisure and/or recreational activities. Therefore, I am satisfied that the Applicant is substantially covered by the Marine Tourism Award.

[3] Clause 4.1 of the Marine Tourism Award covers the Applicant and their employees and expressly states that this coverage is to the exclusion of any other Modern Award. Consequently, I find that the Ports Award does not cover the Applicant.

[4] Having clarified the Award coverage which is applicable I will now proceed to determine the application for approval of the Agreement.

[5] 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.

[6] The Construction, Forestry, Maritime, Mining and Energy Union 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 January 2020. The nominal expiry date of the Agreement is 30 June 2021.

Printed by authority of the Commonwealth Government Printer

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