1
Fair Work Act 2009
s 236 - Application for a majority support determination
Bruce Jenkins
v
Captain Cook Cruises Pty Ltd
(B2014/843)
DEPUTY PRESIDENT SAMS SYDNEY, 11 SEPTEMBER 2014
Application for a majority support determination - ss 236 and 237 of the Fair Work Act 2009
- agreement sought to cover ‘Marine Crew’ only - whether group of employees fairly chosen -
whether geographically, operationally or organisationally distinct - evidence of respondent
preferred - group of employees not fairly chosen - unreasonable to make majority support
determination - application dismissed.
INTRODUCTION
[1] On 2 June 2014, Mr Bruce Jenkins (the ‘applicant’), having nominated himself as an
Employee Bargaining Representative (EBR) for the negotiation of a new Agreement for
‘Marine Crew’ employed by Captain Cook Cruises Pty Ltd (the ‘respondent’), filed an
application seeking a majority support determination, pursuant to s 236 of the Fair Work Act
2009 (the ‘Act’).
[2] A conciliation conference was held by the Commission, as presently constituted, on 26
June 2014. However, no agreement on the application could be reached and the matter was
listed for hearing with directions issued accordingly.
[3] At the hearing, Mr Jenkins appeared for himself, Ms A Svetcova appeared in her
capacity as an EBR and Mr J Fallone from the Australian Institute of Marine and Power
Engineers (AIMPE) was granted limited intervention to make short submissions, having filed
no evidence in the matter. Despite Mr Jenkins’ objections, Mr D Mahendra of Counsel was
granted permission to appear pursuant to s 596(2) of the Act. I should note that Mr Jenkins’
pleas of being disadvantaged because he is not a lawyer ‘ring rather hollow’ considering his
long history of representing himself in this Commission, other Courts and Tribunals. He also
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DECISION
E AUSTRALIA FairWork Commission
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acknowledged he had studied law, but had not completed his degree. In any event, I was
satisfied that, given the novel and largely untested waters covered by this application, that the
matter would be dealt with more efficiently, if the respondent was granted permission to be
represented by a lawyer.
CURRENT AGREEMENT
[4] All of the employees are engaged by Captain Cook Cruises NSW Pty Ltd and Quay
Cruises Pty Ltd t/as Matilda Cruises. For convenience, I shall hereinafter refer to the
employer as the respondent or Captain Cook Cruises. The existing Agreement, the Matilda
Cruises and Captain Cook Cruises Employee Collective Agreement 2009 [AC324844] (the
‘Agreement’) has a nominal expiry date of 14 June 2014. The preamble to the Agreement is
expressed as follows:
‘Captain Cook Cruises is a business directed at providing a variety of products and
services that allow people to access the Harbour and its waterways in a variety of
ways. We provide the opportunity for people to experience leisure, site seeing [sic],
hospitality, educational and transport activities on Sydney’s waterways.
Our vision is to create a company, which is respected by its staff, customers,
competitors and owners. We recognise that we are in a service industry and to deliver
our services, we rely on staff to provide high levels of customer service. We aim to
create a working environment, which is energetic, innovative and ethical.’
[5] The classifications under the Agreement are recorded at cl 4.1 as follows:
Master Syd2000/CCE;
Master IV;
Master V;
Engineer Syd2000;
Engineer All vessels;
Coxswain;
Deck Hand GP (general purpose hand);
Chef;
Cook;
Grill cook;
Kitchen Hand/Stores;
Cruise Director;
Cruise Supervisor;
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Steward/Waitstaff;
Commentator;
Shoreside Engineer/trade
General Hand (unqualified);
General Hand/Painter (unqualified); and
Cashier.
[6] The applicant in these proceedings seeks to commence bargaining for a new
agreement to cover the first seven classifications above, which he categorises as the ‘Marine
Crew’.
[7] The interpretation of the classifications is found at cl 4.11, as expressed below:
Master IV Means an employee being a skipper who is employed by the
Employer under the classification of Master IV skipper who
has the relevant qualification and experience required to
perform the duties.
Master V Means an employee being a skipper who is employed by the
Employer under the classification of Master V skipper who has
the relevant qualification and experience required to perform
the duties.
Coxswain Means an employee who is employed by the Employer under
the classification of Coxswain who has the relevant
qualification and experience required to perform the duties.
Deckhand/General
Purpose Hand
Means an employee who is employed by the Employer under
the classification of Deckhand or General Purpose Hand who
has the relevant qualification and experience required to
perform the duties. Deckhands on Charter Vessels and
Scheduled Cruises are required to work actively in the area of
hospitality and to assist the Cruise Director when not required
to perform duties as directed by the Master.
Chef Means an employee who is employed by the Employer under
the classification of Chef who has the relevant qualification
and experience to perform the duties;
Cook Means an employee who is employed by the Employer under
the classification of Cook who has the relevant skills and
experience required to perform the duties.
Grill Cook Means an employee who is employed by the Employer under
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the classification of Grill Cook who has the relevant skills and
experience required to perform the duties.
Kitchen Hand Means an employee who is employed by the Employer under
the classification of Galleyhand who has the relevant
qualification and experience required to perform the duties.
Cruise Director Means an employee who is employed by the Employer under
the classification of Cruise Director who has the relevant
qualifications and experience required to perform the duties. At
the discretion of management Cruise Directors will be required
to act as an approved manager under the liquor license by
Captain Cook Cruises Pty Ltd. As required and as necessary, a
nominated Cruise Director will need to complete a Liquor
Administration Board approved licensees’ course.
Stewards/Wait
staff
Means an employee who is employed by the Employer under
the classification of Steward / Waiter/ Waitress who has the
relevant qualification and experience required to perform the
duties.
Commentator Means an employee who is employed by the Employer under
the classification of Commentator who has the relevant skills
and experience required to perform the duties.
Overnight
Accommodated
Cruise Vessel
Means a vessel engaged wholly or principally within the limits
of bays, harbours and rivers, which cruises for one or more
days and provides accommodation and hotel style services for
passengers and accommodation for crew.
THE EVIDENCE
[8] Written and oral evidence was given in the proceeding by:
The applicant;
Ms Adriana Svecova, EBR, employed as a Master V by the respondent; and
Mr Anthony Haworth, General Manager of the respondent.
Mr Bruce Jenkins
[9] In his first written statement, Mr Jenkins explained that he is one of 57 ‘Marine Crew’,
which he defined as the Masters, Engineers and Deck Hands. He had appointed himself as an
EBR in his capacity as an employee of the respondent. The total workforce of the respondent
in Sydney was 250 employees.
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[10] Mr Jenkins claimed that 47 of the 57 ‘Marine Crew’ had sought to commence
bargaining for a new agreement following the nominal expiry of the Agreement on 14 June
2014. 34 of the ‘Marine Crew’ employees had appointed Ms Svecova as their EBR. A further
three ‘Marine Crew’ supported commencing bargaining with the respondent, but were
reluctant to formally appoint a bargaining representative as they had concerns the respondent
would take reprisals against them for doing so.
[11] Mr Jenkins deposed that he and Ms Svecova had had five meetings with Mr Haworth
since 7 April 2014 seeking the agreement of the respondent to commence bargaining. At the
last of these meetings on 26 May 2014, Mr Jenkins delivered a letter to Mr Haworth, which
set out the intention of Ms Svecova and himself to commence bargaining with the respondent
for a new enterprise agreement before 19 June 2014. He requested that the respondent send a
Notice of Representational Rights to the employees. Mr Jenkins set out the perceived
deficiencies of the existing enterprise agreement as follows:
‘1. the 2009 Collective Agreement is what is known as an ‘agreement-based
transitional instrument’ in force before the commencement of the Fair Work
Act 2009, as such it cannot be changed or varied except to remove ambiguity.’
2. Amendments to employee pay, terms and conditions that have occurred since
2009 such as changes to rates or pay [sic], changes to allowances and
amendment to increase provisions amount to purported variations of the old
agreement.
3. There have been significant changes to legislation since the drafting of the old
agreement as such the old agreement is in parts variously unclear, ineffective
and or invalid.
4. The current employer entity Captain Cook Cruises Pty Ltd (ABN 1700827302)
is not a party to the old collective agreement which listed employers are Tunsa
Pty Ltd (ABN 63 001 364 487) formerly Captain Cook Cruises (NSW) Pty Ltd
and Rinuba Pty Ltd (ABN 34 002 658 764) trading as Matilda Cruises,
formerly Quay Cruises Pty Ltd trading as Matilda Cruises.’
The letter further set out the terms and conditions which were sought in the proposed
agreement. These were:
‘1. an improvement to pay as a base for a new agreement for the next four years;
a. what is sought is an increase on the offer made by CCC;
b. Marine Crew will compromise on its requested rates;
c. Those employees on a rate of pay higher than the minimum rate of pay in
the new agreement should receive a rateable increase referable to their
position and the agreed increase in the minimum rate of pay for that
position.
2. Insertion in the new agreement some improvement to conditions;
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a. What is in mind is minor variation to pay some allowance for very long
days;
b. Perhaps other reasonable minor reasonable [sic] improvements to
conditions.
3. annual increase provision amendment;
a. An annual increase provision of 4% is sought to the four year term of the
new enterprise agreement;
b. Marine Crew are minded to compromise at a rate less that, perhaps
3.25% to encourage a prompt agreement between the parties.
4. Insertion into the new agreement conditions we are now paid but are not
documented;
a. Such as ½ hour travel time for different starting and finishing sites;
b. Variations to pay and conditions for HCF and offshore work;
c. Other conditions currently enjoyed that are not documented in the old
agreement.
5. back pay for underpayments under the old ECA;
a. it is noted the company has agreed to back pay;
b. back pay for unpaid meal allowances is sought by Marine Crew;
c. Marine Crew are minded to compromise and limit the claim for back pay
for unpaid meal allowance from 1 December 2013 to encourage a prompt
agreement between the parties.
6. Provision for bargaining for a new 2018 agreement to commence on or before
the date 3 months prior to the expiry date of the new agreement.’
He gave a deadline for the respondent to reply by 28 May 2014.
[12] Mr Jenkins said that in response, Mr Howarth circulated a memo to employees on 2
June 2014 in the following terms:
‘Dear All,
Some of our employees have been generating rumours and at times, inaccurate
information about our employment arrangements. I want to use this opportunity to tell
all of you the plain truth:
The current Certified Agreement has a nominal expiry date of 16th June 2014
but continues to apply until it is either terminated by one of the parties or
replaced with another document.
We can advise that the company intends to stick with the current agreement rather than
terminate it or replace it because we believe it offers fair working arrangements for
both employee and employer.
As we’ve already indicated, the pay rise scheduled for April next year will be brought
forward to the first pay week of January 2015.
We have just undertaken a competitive salary review of similar operators in Sydney
Harbour and Captain Cook is paying either at or near the top of the market. Anyone
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who says we are paying low is quite frankly not telling the truth. And because we wish
to ensure we have the best team working here, we will continue to make every effort
to achieve wage levels that are at or near the top of the market.
The bottom line is this: we have a great business and a terrific team who make it both
successful and a wonderful place to work. That’s why we pay the wages that we do. I
am not going to allow a small group of individuals to talk the place down and damage
the business; simple as that.
If you have any questions at all in relation to this please don’t hesitate to contact
myself, Duc Tran, Henry Tsang, Tony Zrilic, David Garret or David Santarelli.’
[13] Mr Jenkins responded on the same day with his own memo, forwarded to all of the
Sydney Vessels Crew. It set out that he was unaware of any inaccurate information circulated
to the employees and noted that Mr Haworth had not particularised this allegation. It claimed
that there was a possibility that the current Agreement’s nominal expiry date was 14 June
2014, but he had not been able to establish, through his queries to the Commission and the
Fair Work Ombudsman (FWO) whether the Agreement was registered. He relied on the
reasons he had set out in the letter of 26 May 2014 (see para [11]) for a new enterprise
agreement to be negotiated with ‘Marine Crew’ and denied that the respondent’s rates of pay
were ‘at the top of the market.’ The letter also expressed dissatisfaction with Mr Haworth’s
characterisation of himself and the other employees seeking to enter bargaining with the
respondent as ‘talking the place down and damaging the business’ and said that the failure of
the respondent to enter into bargaining was ‘regrettable but not unexpected’. He expressed his
intention to apply to the Commission for orders to commence bargaining.
[14] In a further written statement, Mr Jenkins claimed that there were some inaccuracies in
relation to Mr Haworth’s description of the respondent’s operations. In particular, the listing
of employees was out of date and included a number of employees no longer employed by the
respondent. It did not appropriately identify employees by their relevant department. It
incorrectly attempted to link ‘Marine Crew’ with hospitality and other staff.
[15] Mr Jenkins acknowledged that the nature of the respondent’s business was in the
provision of a customer experience or service, but emphasised that the ‘Marine Crew’s’
responsibilities were for the navigation and operation of the vessels; their primary function
was to ensure the safety of customers and the respondent’s vessels. The ‘Marine Crew’ sought
a separate enterprise agreement due to the separate and discrete circumstances of their duties.
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[16] Mr Jenkins noted that the respondent did not recognise a group of employees known
as ‘Marine Crew’, but did recognise the ‘Vessel Crew’, meaning the ‘Marine Crew’ with the
addition of six employees who work as on-board commentators.
[17] Mr Jenkins denied that there was any basis for the respondent’s claim that operating
under four enterprise agreements (rather than three) would lead to a diminution in customer
service, guest experience, efficiency or employee ‘happiness’. He provided the example of the
Quicksilver Connections AMOU & AIMPE Marine Agreement 2014-2018 [AE407354] (the
‘Quicksilver Agreement’) as an Agreement covering a business of a similar size which had a
separate enterprise agreement for its ‘Marine Crew’.
[18] Mr Jenkins said that the ‘Marine Crew’ had made a claim in relation to a pay increase
and that the respondent had made a counter-offer, which was rejected by the ‘Marine Crew’
and was subsequently withdrawn by the respondent. He noted that the respondent had made
offers to individual ‘Marine Crew’ employees to vary the terms of their employment and offer
a levy for work performed for Harbour City Ferries and for working on offshore services,
such as whale-watching.
[19] Mr Jenkins provided an indicative organisational chart as follows, which he claimed
demonstrated the distinction between the ‘Marine Crew’ and the hospitality crew:
Managing Director General Manager Marine Manager Entertainment Hospitality Marketing and Manager Sales Manager Finance Manager Wharf Managers Engineering Sales, charters, Manager Commentators Cruise Directors reservations, Accounting ticketing Masters and Vessel based Shore based Cooks waitstaff Payroll Deckhands Enginners Engineers and Entertainers ancillary staff Kitchen hands F&B / Stores manager
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[20] In cross examination, Mr Jenkins was shown an email sent on 19 November 2013,
which he agreed was effectively his job application. It was expressed as follows:
‘Hi Tony
I write in response to your advertisement seeking skippers for Captain Cook Cruises. I
hold Master 24m NC and MED 3 NC.
I am 56 years old (DOB 11.09.57), I am currently doing ad hoc charter work on
Sydney Harbour for various operators. I have extensive experience in waters along the
eastern coast from Lizard Island, Queensland in the north to Geelong Victoria in the
south. I have been across the entire length of the Great Barrier Reef from Lady Elliot
Island to Lizard Island. I have owned tourist charter vessels operating out of Cairns
and Southport from 12-36 metres in length. I certainly have an understanding of the
requirements of a charter skipper.
I look forward to the opportunity to discuss the opportunity to work with CCC. My
contacts are: [supplied]’
[21] Mr Jenkins clarified that he had started doing ad hoc charter work in Sydney Harbour
in November 2013 for a company called East Coast Sailing and another company (the name
of which he could not recall). His experience along the East coast was on private vessels,
rather than on commercial vessels. He had not worked as a Captain when he had owned a
tourist charter vessel in the 1980s and 1990s. He had obtained commercial qualifications in
2003 and accepted that prior to November 2013, he had no commercial marine tourist
experience as a Skipper. The experience as a Skipper he had referred to was in a private
capacity and his being onboard commercial boats, but not as a Skipper. His ad hoc
experience, prior to getting his commercial qualifications full time, was between 2 and 10
hours per week. He did not accept that the above email had embellished his experience as a
Captain or his experience in marine tourism.
[22] Mr Jenkins agreed he had been the subject of a criminal case brought by the Victorian
Police in relation to businesses previously owned by him. This matter had been in the
Victorian Supreme Court, the Victorian Court of Appeal and the High Court. He was
sentenced in 2000 and had served three years in gaol as a result. He had studied for his
commercial Skipper’s licence while in gaol and was granted certificates of competency in mid
or late 2003. He had also represented himself in proceedings in the Queensland Civil and
Administrative Tribunal in a matter involving a claim of repudiation of contract and quantum
meruit. He clarified that he had started, but had not finished, a law degree.
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[23] Mr Jenkins claimed that his objective in relation to this application was to seek an
increase in rates of pay and to formalise some terms and conditions which were industry
norms. He gave the example of travel time and meal breaks, the latter of which had been the
subject of a dispute notification to the Commission. ‘Marine Crew’ worked longer hours and
double shifts and these provisions were more relevant to them. However, he stressed he was
not suggesting that non-‘Marine Crew’ employees did not work double shifts. He accepted
that a number of non-‘Marine Crew’ staff worked on ships and that there were routine
interactions between the two groups. Commercial vessels would often operate without
hospitality staff or a commentator and even some tourist commercial vessels operated on a
‘hop-on, hop-off’ basis, without hospitality staff. He said that the ‘Marine Crew’ was
operationally distinct and it was trite to argue that they were interdependent on other
employees in the business.
[24] Mr Jenkins was shown a number of position descriptions setting out the reporting
structure on the vessel. He accepted that a description of the Master supporting the
respondent’s ‘Hospitality based product’ was accurate. He also agreed that the Vessel
Engineer was required to work with the Master’s First Mate, being the Cruise Director. The
Vessel Engineer was required to assist in customer service and hospitality duties when not
engaging in active engineering work, but it was a mistake to think of these as primary, rather
than secondary duties. While there was some overlap in relation to the customer service duties
in the above roles, there was limited interaction with hospitality staff. He agreed that all
employees were required to facilitate the provision of excellent customer service.
[25] Mr Jenkins was unclear as to whether the Cruise Director had a supervisory role in
relation to all crew, or just the hospitality crew. While a position description set out that Deck
Hands reported to the Master through the Cruise Director, this could create confusion,
particularly on smaller boats. He agreed that the existing Agreement currently applied to all of
the Vessel Crew in Sydney. In any event, he did not accept that an arrangement whereby
separate enterprise agreements applying to ‘Marine Crews’ on smaller and larger boats would
be inefficient.
[26] Mr Jenkins was shown three memos distributed to ‘All Vessel Crew’ on 24 May 2011,
20 July 2012 and 1 May 2014. Respectively, they dealt with staff meal and waste incidence,
garbage disposal arrangements and paid meal breaks for staff who work on vessels where
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customers are not having a meal. He accepted that the group of employees to whom the
memos had been sent was wider than just the ‘Marine Crew’ and Commentators which he had
identified as comprising the ‘Vessel Crew’, though the definition of ‘Vessel Crew’ seemed to
have been fluid, over time.
Ms Adriana Svecova
[27] In her written statement, Ms Svecova said that 47 of the 57 Masters, Engineers or
Deck Hands (‘Marine Crew’) employed by the respondent across Sydney wished to bargain
separately for a new enterprise agreement and 43 had appointed her as a bargaining
representative, pursuant to s 176(1)(c) of the Act. The remaining 4 were unwilling to sign a
formal appointment for fear of retribution by the respondent. She explained that out of the
remaining 10 employees, 6 had not been approached by her and 4 had indicated that they were
not interested; though she speculated that they would not object to improvements in pay and
conditions resulting from successful bargaining with the respondent.
[28] Ms Svecova emphasised that she was not a Union member, although some of the
‘Marine Crew’ were. Therefore, accusations by the Management of the respondent that she
was ‘bringing the unions in’ were false.
[29] Ms Svecova stated that she had been involved in five meetings with the employer
between 7 April and 26 May 2014 in order to commence bargaining for a new enterprise
agreement. Mr Haworth had rejected the proposal to bargain and had said that the old
Agreement would continue to apply, although he indicated that there may be an amendment to
the pay and conditions and an increase due on 7 January 2015 would be brought forward. Ms
Svecova had met with Mr Jenkins on 1 June 2014, and resolved on behalf of the employees
she represented, to support the application filed by Mr Jenkins the following day. These
employees continued to support the application.
[30] In cross examination, Ms Svecova clarified the wording of her statement in that she
had told Mr Jenkins what she wanted to say and that he had written it down. She had checked
it to make sure she was happy with the wording before signing it. She accepted that
paragraphs 3 through 7 in both her statements (which referred to the number of ‘Marine
Crew’ employees currently employed in Sydney, their coverage by the existing agreement,
the number of these who supported bargaining for a new agreement and the number of those
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who had appointed her as a Bargaining Representative) and one of Mr Jenkins’ statements
were virtually identical. They were all written by Mr Jenkins. It was the latter part of her
statement, which referred to the ‘Marine Crew’ employees.
[31] In re-examination, Ms Svecova clarified that it was in fact 53 out of 65 ‘Marine
Crew’ who supported bargaining for a new agreement.
For the respondent
Mr Anthony Howarth
[32] Mr Howarth is the General Manager of the respondent and has been working full time
in the respondent’s business since 1988. He explained that his parents had started the
respondent’s business as a Sydney Harbour coffee cruise service in 1970. The respondent had
acquired Matilda Cruises Pty Ltd in 2005 and the respondent was itself purchased by Sealink
Pty Ltd in 2011. This was when he became General Manager.
[33] In his written statement, Mr Howarth drew a distinction between the respondent’s
Sydney operations and its Murray River operations. The Murray River Operations employed
around 59 employees which run one vessel providing week long accommodated cruises.
These employees are covered by the Murray River Cruise Vessel Agreement 2011
[AE899894]. The Sydney Harbour operations involve 15 vessels working in Sydney Harbour
and surrounding waterways. The respondent currently employs 233 employees, although this
would increase to approximately 280 in the summer peak period.
[34] Mr Howarth deposed that the Sydney operations staff were divided into three groups,
being the salaried staff (46), the reservations staff (16) and the employees who perform
‘mutually dependent’ tasks directly and indirectly involved with the operation of the vessels
and provision of customer service (171 employees). The salaried staff are employed under
employment contracts and include people like himself and the Financial Controller. The
reservation staff carry out administrative and clerical functions and were covered by the
Clerks Private Sector Award 2010 until the respondent registered an enterprise agreement in
2011. The other staff were covered by the Agreement.
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[35] Mr Haworth explained that the respondent’s Sydney operations involved 6 small ferry
vessels, 8 cruise/sightseeing vessels and 1 work barge support vessel. There are four types of
operations:
1. Ferry work - the 6 small ferry vessels provide transport and commuter
services around the Harbour and surrounding destinations, either under contract
to the New South Wales Government or to Harbour City Ferries Pty Ltd. This
work makes up 10% of the respondent’s revenue.
2. Sydney Harbour Operations: Sightseeing - 2 of the ferry vessels and the rest
of the fleet were involved in the provision of services, including Whale
Watching, Coffee Cruises, Highlights Cruises and Hop On, Hop Off (HO HO)
Sight Seeing tours. These services account for approximately 25% of the
respondent’s revenue.
(a) On whale watching services, all staff, including the Captain, are expected
to participate in providing a ‘customer service experience’ to passengers.
Staff engaged in commentary and hospitality services were additional to
those required to operate the vessel. Light meals and refreshments are
served on these services.
(b) On Coffee Cruises, customers would be taken on the Harbour for a
scheduled duration, departing and arriving at the same spot. All staff,
including the Captain and the Engineer are expected to provide customer
service functions, such as greeting and farewelling passengers. The Deck
Hands’ primary role involved ensuring passengers embark and disembark
safely, but they may be required to assist hospitality staff in their duties.
The Captain and the Cruise Director had joint responsibility for ensuring
customer needs are met. Sit down meals and drinks are available on these
services.
(c) HO HO services move around the Harbour to places of interest and
customers are free to disembark until embarking on another vessel. Staff
also provide commentary services, light meals and drinks.
3. Restaurant Services - This involved the larger of the respondent’s vessels,
including the largest, the ‘Sydney 2000’. These services provided full ‘a la
carte’ meals and alcohol. Again, all staff were required to work closely as a
team to ensure that customers had a memorable experience. The Captain, the
Cruise Director, Deck Hands and kitchen staff were required to interact with
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guests as needed. All staff, aside from the Captain, were required to have a
Responsible Service of Alcohol accreditation. These services combined with
charter services involve 65% of the respondent’s revenue.
4. Charter services - These are provided for private functions for a variety of
customers. All staff are again expected to provide services in addition to their
primary duties on board the vessel, although this was dependent on the nature
of the charter.
[36] Mr Haworth denied that there was a discrete group of employees known as ‘Marine
Crew’ although this group, as defined in the application, form part of the larger group covered
by the Agreement. The respondent had resisted the request from the ‘Marine Crew’
employees to enter into bargaining, because it did not seem that the majority of employees
under the Agreement wished to enter into bargaining. The respondent was strongly opposed to
providing the ‘Marine Crew’ with a separate enterprise agreement, as it saw its business as the
provision of guest services. This would ensure the respondent’s objective of creating a
memorable experience for its customers. This objective was best served by a sense of
cohesion in relation to all employees working on vessels.
[37] Mr Haworth stated that prior to the purchase of Matilda Cruises Pty Ltd, the
employees of the respondent were covered by approximately five different Awards. It was
subsequently recognised that having one Agreement which covered all employees who were
involved in providing services to customers and with the additional customer based duties of
Captains, Deck Hands and the Cruise Director codified in the Agreement, yielded better
results. The coverage was deliberately expanded in the Agreement approved in 2009 due to
this recognition. The respondent’s preference for rolling over the current arrangements had
been communicated to employees as this was fundamental to the operation’s success.
[38] A memo addressed to ‘The entire Vessel team’ from Mr Howarth was sent by email
on 26 June 2014 in the following terms:
‘Dear All,
Today, Bruce Jenkins, Adriana Svekova and Luke Colombo asked the Fair Work
Commission that the Marine Crew (Masters, Engineers and Deckhands) be permitted
to have their own workplace agreement with the Company separate to everyone else.
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Our company vigorously opposed this on the grounds that it would never agree to one
select grouping of employees to advantage themselves at the expense of everyone else.
The company will only agree to a workplace agreement which covers ALL our Vessel
Crew. WE told the fair Work Commission that we will talk to our employees about an
agreement that would cover all the Vessel Crews. Unfortunately that offer was
knocked back by Bruce and his team.
It seems amazing to us but Bruce told the Fair Work Commission that he wanted to
press on with an attempt to get a select group of employee’s advantage over another.
The Commission has set the case down for a hearing on 29 July 2014.
The other case this morning was an application by Bruce in relation to meal money.
After hearing form the Commission about his prospects should that matter go ahead
Bruce agreed to withdraw it.
We will keep you all informed as to what the Commission decides after hearing the
case on 29 July next.’
[39] In cross examination, Mr Haworth said that he had seen a lot of industrial
arrangements in his 44 years in the business and the current arrangements were the most
efficient and cohesive he had experienced. He did not believe it followed that the motivation
of pay and conditions for four, rather than three, different groups would yield greater
efficiencies. The goal was to create an environment on the small space of the vessels which
was harmonious, cooperative and collaborative in order to satisfy customer expectations. He
saw no reason to tamper with the current arrangements. Mr Haworth agreed that there was a
different market for hospitality staff in that there was a larger pool of workers.
[40] In relation to an allowance offered contractually to individual staff working in
satisfaction of a Harbour City Ferries contract, Mr Haworth was of the view that this was an
appropriate means to reward employees working in a different environment.
[41] Mr Haworth did not accept that the ‘Marine Crew’ were subject to different safety
obligations, but accepted that they had separate qualifications. While all employees had
different duties to discharge in relation to safety, he saw them as jointly responsible for safety
at large. Mr Haworth believed that all of his employees were notionally covered by the
Marine Tourism and Charter Vessels Award 2010 [MA000093].
[42] In response to a question from me, Mr Haworth clarified that prior to the 2009
Agreement, the employees had been covered by a collective agreement which had been in
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existence when the respondent purchased Matilda in 2005 in addition to a mixture of Awards
for the other staff. These complicated arrangements had created disquiet and dissent amongst
employees and 2009 was the first time that all Vessel Crew were covered under the same
instrument. There had been no Union opposition to the approval of the 2009 Agreement at the
time.
SUBMISSIONS
For the respondent
For the applicant
[43] In written submissions, Mr Jenkins agreed that the statutory test proposed by Mr
Mahendra was the correct one (see para [57]), but claimed that this test actually assists the
applicant’s case. The group defined by Mr Jenkins as ‘Marine Crew’ are operationally and
organisationally distinct such as to satisfy the Commission that the group was fairly chosen
for the purposes of s 237(2)(c) of the Act.
[44] Mr Jenkins added that there were ‘elements’ of geographical distinction in that there
was little interaction or contact between ‘Marine Crew’ and many of those staff covered by
the Agreement. It was also said that the ‘Marine Crew’ were geographically distinct from
shore based employees reporting to the Marine Manager.
[45] Mr Jenkins set out a number of factors which were said to contribute to a finding that
‘Marine Crew’ were operationally distinct. He noted that some vessels would have two
‘Marine Crew’ working alone on board, while others would have up to five ‘Marine Crew’
and up to 29 other ‘ancillary staff’ (Cooks, Galley Hands, Wait Staff, Cruise Directors and
Entertainers). He also noted that ‘Marine Crew’ would work longer hours, including double
shifts. In comparison, it was common to use two crews of hospitality staff on some vessels.
Hospitality and entertainment staff had roles that were entirely distinct from that of the
‘Marine Crew’. He noted that hospitality crew were not required to be able to operate and
navigate vessels and that it was not essential for ‘Marine Crew’ to provide hospitality and
entertainment services.
[46] Mr Jenkins referred again to the organisational chart in his witness statement (See para
[19]) to support his submission that there were separate reporting lines for ‘Marine Crew’. He
noted that ‘Marine Crew’, along with shore based engineers, contractors and cleaners report to
[2014] FWC 6321
17
the Marine Manager, but out of that group, only the ‘Marine Crew’ navigate and operate
vessels on Sydney Harbour and surrounding waters. As such, they were organisationally
distinct.
[47] Mr Jenkins submitted that it would be reasonable for the Commission to make a
majority support determination in the terms sought by the applicant (s 237(d)) and claimed
that it was an industry norm that marine operators have enterprise agreements with ‘Marine
Crew’ separate to those with staff who performed other functions. The respondent
maintaining four, rather than three enterprise agreements, would not have a detrimental effect
on customer service, efficiency or employee ‘happiness’. On the other hand, there was no
cogent evidence that the current arrangements resulted in increases in productivity or
efficiency. Some of the ‘Marine Crew’ working on vessels contracted with Harbour City
Ferries had been given significant pay increases. In light of this, the respondent could not rely
on a submission that different conditions could reduce employee ‘happiness’.
[48] Mr Jenkins noted that the Agreement had passed its nominal expiry date. He said that
the applicant should not be required to bargain for all employees. In the event that a majority
support determination was made, it was expected that a moderate improvement in pay and
conditions would flow to the ‘Marine Crew’ employees. It may be that the respondent would
enter into another enterprise agreement with the other employees currently covered by the
Agreement, although this bargaining would likely proceed differently, in that these staff were
largely ‘itinerant or seasonal backpacker wait staff’ in contrast to the career professionals such
as the ‘Marine Crew’.
[49] In opening remarks, Mr Jenkins advised that he no longer pressed the submission that
the ‘Marine Crew’ were geographically distinct. However, it could still be said that they were
operationally and organisationally distinct. Hospitality and entertainment staff roles were
entirely distinct to ‘Marine Crew’ roles. The Captain occasionally welcoming people on board
a vessel did not change this arrangement. Entertainment staff and commentators reported to
the Entertainment Manager and hospitality staff reported to the Hospitality Manager. He
noted that there were seasonal changes in the levels of wait staff and hospitality staff, who
were subject to different types of supply and demand in the employment market. He referred
to them as ‘minimum wage employees’.
[2014] FWC 6321
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[50] Mr Jenkins argued that industry norms were a powerful argument in favour of his
application, in that the usual practice was for marine operators to have a separate enterprise
agreement for ‘Marine Crew’. He gave the example of the Quicksilver Agreement. He sought
a majority support determination in order to commence good faith bargaining with the
respondent. The respondent’s business was profitable and there was no reason why it could
not enter into bargaining. The existing Agreement could not be varied as it was a transitional
collective agreement.
[51] In further oral submissions, Mr Jenkins noted that it was conceded by the respondent
that there was majority support for bargaining amongst the group he described as the ‘Marine
Crew’. While he acknowledged some commonality in duties in relation to the provision of
excellent customer service, there was a distinction on operational grounds in that nobody else
performed the job of the ‘Marine Crew’. They were subject to different qualifications and
technical requirements. He described their secondary customer service duties as an
‘intersection’ on operational grounds and submitted that it could not support a finding that
they were not operationally distinct.
[52] In relation to reasonableness, Mr Jenkins acknowledged that while it was true that
Marine Operators often have enterprise agreements covering only their ‘Marine Crew’, it was
also common for them to have enterprise agreements covering the whole of their operations.
In any event, it could be said that it was not abnormal or unusual for Marine Operators to have
enterprise agreements covering only their ‘Marine Crew’. Granting the determination would
not undermine cohesion in the workplace and it would shift a balance of power away from the
employer to a group of employees.
For AIMPE
[53] Mr J Fallone of AIMPE was granted limited leave to intervene. In oral submissions,
he noted that it was conceded by the respondent that the majority of ‘Marine Crew’ wished to
bargain. He supported the submissions of the applicant that the group was ‘fairly chosen’ in
that it was operationally and organisationally distinct, specifically referring to the
organisational chart provided by the applicant. The respondent had not provided evidence to
refute that the chart reflected their arrangements or that Masters, Engineers and Deck Hands
lie under a different part of the operational structure to the sectors managed by the
Entertainment Manager and the Hospitality Manager. The reliance of the respondent on the
[2014] FWC 6321
19
position descriptions setting out the secondary duties of ‘Marine Crew’ to show that they were
not operationally distinct, was unfounded.
[54] Mr Fallone said that the primary function of the ‘Marine Crew’ was to ensure that the
vessel was working safely and smoothly to get customers to their destination, regardless of
the nature of the service on which they worked. In contrast, the hospitality and entertainment
staff were to ensure that the customers were fed, happy and entertained. There were clear
operational distinctions. The organisational structure supports the operational structure.
[55] Mr Fallone understood that the respondent had concerns as to the impact of a majority
support determination on its business, but he drew the Commission’s attention to a number of
enterprise agreements covering a group similar to the ‘Marine Crew’ in this case, which
supported a finding that it would be reasonable to make a majority support determination in
the terms sought. These include:
Bruny Island Ferry Services Agreement 2013 [AE408102];
Murray River Cruise Vessel Agreement 2011 [AE899894];
Quicksilver Agreement.
[56] Mr Fallone noted the contract entered into by the respondent with Harbour City
Ferries and submitted that there were elements of the respondent’s business which were
changing. In light of this, making the majority support determination would be in the interests
of fairness and efficiency. Further, it would be reasonable to make the determination, in view
of the respondent’s refusal to commence bargaining.
For the respondent
[57] In written submissions, Mr D Mahendra of Counsel set out that in order to make a
majority support determination, the Commission must be satisfied that the group of
employees who will be covered by the enterprise agreement had been fairly chosen, taking
into account whether the group is geographically, operationally or organisationally distinct;
See: Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union and Others [2012]
FWAFB 2206 (‘Cimeco v CFMEU’). These were not met in this case and the application
should be dismissed.
[2014] FWC 6321
20
[58] Mr Mahendra submitted that it could not be said that the group of employees chosen
by the applicant are geographically distinct, as they were simply part of a group of 171
employees who perform work in Sydney and who are covered by the Agreement. Nor could
they be said to be operationally distinct as they perform the same role as a number of other
employees in the provision of customer services to passengers. Further, all of the employees
covered by the Agreement are dependent on each other for the successful performance of their
own roles; See National Union of Workers v Interlloy Pty Ltd [2013] FWC 5479 (‘Interlloy’);
and Association of Professional Engineers, Scientists and Managers, Australia v Australian
Red Cross Blood Service and others [2011] FWA 2914. Finally, the group of employees
chosen by the applicant was not organisationally distinct as there were no separate reporting
lines for that group in contrast to the other employees covered by the Agreement.
[59] Mr Mahendra said that in order to make a Determination, the Commission would also
need to be satisfied that it is reasonable in the circumstances to do so. It would not be so in
this case, because the number of Awards that would apply to the respondent’s employees
would result in flow on inefficiencies and problems with cohesion that would arise in
attempting to maintain coverage of employees under these instruments. This could have an
adverse effect on the ongoing success of the respondent.
[60] In opening remarks, Mr Mahendra stressed that the respondent did not seek to
dispute the evidence put forward by the applicant in addressing the criteria under ss 237(2)(a)
and (b) of the Act. The issues for determination in this matter arose under ss 237(2)(c) and
(d). It was incorrect for Mr Jenkins to submit that the words ‘fairly chosen’ should be
interpreted differently in the context of a scope order, as opposed to another part of the Act.
This was inconsistent with the principles of statutory construction and the only matters which
the Commission should have reference to are whether the group is geographically,
operationally or organisationally distinct; See: John Holland Pty Ltd v Construction, Forestry,
Mining and Energy Union [2014] FCA 286. Whether the group was operationally distinct
would turn on the facts of each case. However, the Commission should find that the ‘Marine
Crew’ is not operationally distinct, as there are routine interactions between all employees
aboard the vessel; See: Interlloy at para [86].
[2014] FWC 6321
21
[61] In further oral submissions, Mr Mahendra submitted that reliance on a list of
enterprise agreements which covered only ‘Marine Crew’ would be of no use to the
Commission.
[62] Mr Mahendra put that there was an inconsistency in the applicant identifying some of
the employees who report to the Marine Manager and not others as ‘Marine Crew’. In any
event, the chart adduced by the applicant merely sets out a structure through which
administrative processes could take place. The evidence of Mr Haworth set out that when
aboard the vessel, all staff report through the Cruise Director to the Master. There were
overlapping duties which they perform. Accordingly, the chart provided by the applicant
should be given little weight by the Commission.
[63] Mr Mahendra submitted that the meaning of ‘fairly chosen’ should be interpreted
consistently throughout the Act. The Explanatory Memorandum lent weight to the notion that
the Commission should have regard to the manner in which an employer chooses to organise
its enterprise. The employer had chosen the current arrangement, having previously been
subject to a number of industrial instruments and now found that the workplace was more
cohesive and harmonious as a result. Mr Haworth had been in the business a significant
period of time and his evidence to this effect should be accepted over that of the applicant,
who had been working for the respondent for a relatively short period. The applicant had
conceded that there were routine interactions between the ‘Marine Crew’ and the other
employees on the vessel. There was an overlap in their duties and a clear line could not be
drawn between them.
[64] In oral submissions in reply, Mr Jenkins said that Mr Mahendra was not correct to
say that there was no evidence as to industry norms, as he had provided evidence of a
similarly sized, if not larger, business to the respondent.
[65] Mr Jenkins claimed that Mr Haworth had not been able to satisfactorily answer
questions as to how a change in industrial arrangements would affect efficiency or
productivity.
[2014] FWC 6321
22
[66] Mr Jenkins put that it would be fair and reasonable to make a majority support
determination. If the respondent wanted to argue about scope, it could apply for scope orders
later. The grant of the determination would allow the parties to get bargaining underway.
CONSIDERATION
The legislative provisions
[67] The legislative provisions governing this application are set out at ss 236-237 of the
Act as follows:
‘236 Majority support determinations
(1) A bargaining representative of an employee who will be covered by a proposed
single-enterprise agreement may apply to the FWC for a determination (a majority
support determination) that a majority of the employees who will be covered by the
agreement want to bargain with the employer, or employers, that will be covered by
the agreement.
(2) The application must specify:
(a) the employer, or employers, that will be covered by the agreement; and
(b) the employees who will be covered by the agreement.
237 When the FWC must make a majority support determination
Majority support determination
(1) The FWC must make a majority support determination in relation to a proposed
single-enterprise agreement if:
(a) an application for the determination has been made; and
(b) the FWC is satisfied of the matters set out in subsection (2) in relation to
the agreement.
Matters of which the FWC must be satisfied before making a majority support
determination
(2) The FWC must be satisfied that:
(a) a majority of the employees:
(i) who are employed by the employer or employers at a time
determined by the FWC; and
(ii) who will be covered by the agreement;
want to bargain; and
[2014] FWC 6321
23
(b) the employer, or employers, that will be covered by the agreement have not
yet agreed to bargain, or initiated bargaining, for the agreement; and
(c) that the group of employees who will be covered by the agreement was
fairly chosen; and
(d) it is reasonable in all the circumstances to make the determination.
(3) For the purposes of paragraph (2)(a), the FWC may work out whether a majority of
employees want to bargain using any method the FWC considers appropriate.
(3A) If the agreement will not cover all of the employees of the employer or
employers covered by the agreement, the FWC must, in deciding for the purposes of
paragraph (2)(c) whether the group of employees who will be covered was fairly
chosen, take into account whether the group is geographically, operationally or
organisationally distinct.
Operation of determination
(4) The determination comes into operation on the day on which it is made.’
[68] The Explanatory Memorandum to the Fair Work Bill 2008 deals with the meaning of
‘fairly chosen’ albeit not in the context of s 237(2)(c) of the Act in relation to ‘scope orders’.
Given the principle of statutory construction that the meaning of words in one section of a
statute are taken to have the same meaning where they appear in other sections, unless
expressly stated to the contrary; See: Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450
per Hodges J, I am satisfied it is appropriate to have regard to the Explanatory Memorandum
in this context. At 777 it states:
‘777. It is intended that in assessing whether the group of employees covered by the
agreement is fairly chosen, FWA might have regard to matters such as:
the way in which the employer has chosen to organise its enterprise;
and
whether it is reasonable for the excluded employees to be covered by the agreement
having regard to the nature of the work they perform and the organisational and
operational relationship between them and the employees who will be covered by the
agreement.’
[69] Mr Mahendra, properly I believe, conceded that the provisions of ss 237(2)(a) and (b)
are not at issue in this case; although he expressed the concession as the respondent not
disputing the evidence put by the applicant that:
[2014] FWC 6321
24
(a) a majority of the employees proposed to be covered by the agreement want to
bargain; and
(b) the respondent employer has not yet agreed to bargain, or initiated bargaining
for the agreement.
[70] It is to be observed that the Commission must be satisfied as to each of the four
criteria set out in s 237(2) of the Act. Accordingly, the central agreed focus in this case was
on ss 237(2)(c) and (d).
[71] True it is that there are agreements in the marine tourism industry such as Quicksilver
Agreement which only cover the similar classifications to what is sought in this application.
However, the practice of separate agreements for the maritime crew is neither universal nor
unique.
[72] As the concept of an enterprise agreement implies, consent between an employer and
its employees is the underpinning essence of an agreement. From my inquiries, it may be
accepted that the agreements relied upon by Mr Jenkins and Mr Fallone did not arise from
any disagreement between the employer and the employees as to scope and/or coverage. In
addition, I was provided with no arbitrated decision of the Commission in respect to any
agreements in the maritime industry directly on all fours with the issues in this case. That
being so, agreements made by consent have limited potential as authority for the propositions
advanced by Mr Jenkins and AIMPE.
[73] In any event, there are a number of other factors which tell against the submissions of
Mr Jenkins and Mr Fallone. Firstly, there is no history of this employer and its employees
having separate agreements for ‘Marine Crew’ and hospitality staff. The most recent
Agreement, now expired, demonstrates this fact.
[74] Secondly, given the evidence (which I accept) of the close working relationship
between the ‘Marine Crew’ and the hospitality staff in order to provide a ‘holistic’ tourist
experience, it seems to me that the possible division of the workforce and the flow on effects
of possibly having two significantly different sets of wages and conditions may have the
potential for workplace and industrial discontent, even conflict. That is not a prospect I am
prepared to risk.
[2014] FWC 6321
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[75] Thirdly, there was evidence - not seriously challenged - that members of the ‘Marine
Crew’ report directly to the Cruise Director - the Deck Hands, for example - and all staff
report through the Cruise Director to the Master. In this respect, relying on an organisational
chart to demonstrate the case you wish to prove, does not necessarily reflect the reality of the
reporting lines which are plainly disclosed by the tendered position descriptions. I note that
Mr Jenkins does not seek to include Shore based Engineers and ancillary staff in the ‘Marine
Crew’ although the organisational chart includes them as reporting to the Marine Manager.
This exclusion further undermines the reliance on this chart by Mr Jenkins and its reliability.
[76] Fourthly, having regard for Mr Haworth’s 44 years experience in the industry, I found
his evidence far more persuasive than that of Mr Jenkins, whose experience is very limited
(prior to November 2013, he had no commercial experience as a Skipper) and from his cross
examination, it would appear to have been embellished. Mr Haworth gave evidence that the
current arrangements (one agreement covering all Vessel Crew) have worked well for over
five years and have resulted in a productive and cooperative workforce. He said at PN533-
PN534:
‘Look, my view is that if you have a group of people who are working together in a
small space on whatever, if they're all working under the same terms and conditions,
you have a very harmonious group of people. If you have a group of people working
towards that goal who are under different conditions, you have a situation where
people snipe and bitch and moan and complain and spend a lot of time focusing on
things other than the customer. It's the view through experiences like that over 44
years. I've seen it, I've lived it, I've breathed it, I've grown up with it and I know that
the current circumstance is by far and away the best, most harmonious model. From a
management perspective that – in terms of managing, coordinating, cohesively
bringing a team together that you can have. I know it works best, and, you know,
we've gone through a very tough period of time environmentally on the harbour and in
Sydney tourism over the past seven or eight years and yet the company has done very
well. It's thrived in that time and it's – a great deal of that has to do with the fact that
we have a very harmonious group of people working together for one goal which is to
look after our customers. We have a very strong and successful customer culture or
whatever and we don't want to ... tamper with that. We don’t want to do things which
actively sabotage that process.’
There was no real challenge to this evidence. Mr Haworth’s evidence was clear, cogent and
believable.
[2014] FWC 6321
26
[77] Fifthly, I do not accept that the ‘Marine Crew’ are geographically, operationally or
organisationally distinct. It is unarguable that they are certainly not geographically distinct.
Mr Jenkins conceded as much. As to whether the ‘Marine Crew’ are operationally or
organisationally distinct, I accept the respondent’s contentions that:
1. All employees work on the vessel;
2. The respondent’s focus is on hospitality and customer service;
3. All the Vessel Crew are dependent on each other to provide a ‘holistic’
customer/tourism experience; and
4. Such a focus is not a secondary function but, as is plain from the position
descriptions tendered by Mr Mahendra, are a primary function of all Vessel
Crew.
[78] Sixthly, if, as seems obvious, Mr Jenkins’ objective in lodging this application is to
secure higher rates of pay and improved conditions for himself, then surely this is also an
aspiration of all other Vessel Crew. As a matter of equity, it may be more appropriate to seek
to achieve such a result through a wider collective approach, involving all Vessel Crew.
[79] There is no doubt that the interests of the excluded employees are a relevant
consideration in the assessment of whether a group of employees was ‘fairly chosen’. In
Cimeco v CFMEU, a Full Bench of Fair Work Australia (FWA, as the Commission was then
known) said at paras [22]-[23]:
‘[22] To the extent that it is suggested that the interests of the excluded employees are
irrelevant we reject that submission. In evaluating whether the group to be covered by
the agreement has been fairly chosen it is entirely appropriate to have regard to the
consequences of that choice, that is, which employees have been excluded from the
agreement.
[23] In circumstances where FWA has made a ‘majority support determination’ or a
‘scope order’ during the bargaining process for the agreement this will be relevant to
the determination under s.186(3) of whether the group covered by the agreement was
‘fairly chosen’. This is because one of the requirements of which FWA must be
satisfied before making a majority support determination or a scope order is that ‘the
group of employees who will be covered by the agreement proposed to be specified in
the scope order was fairly chosen’ (see s.237(2)(c) and 238(4)(c)).’
[2014] FWC 6321
27
[80] This principle was expressed slightly differently by another Full Bench in
Construction, Forestry, Mining and Energy Union v ResCo Training and Labour Pty Ltd
[2012] FWAFB 8461, where the Bench said at paras [34]-[35]:
‘[34] Nevertheless as part of the approval process the tribunal needs to be satisfied that
the group of employees covered by the agreement is fairly chosen by reference to the
other classes of employee who might have been included in the agreement and the
various classes who are included. In determining this question the tribunal is required
to consider whether the group of employees is geographically, operationally or
organisationally distinct. The inclusion or exclusion of a particular group may operate
unfairly in one way or another and this will depend on a consideration of all the
circumstances.
[35] In most enterprises there is unlikely to be only one fair manner of selecting the
class of employees to be covered by an enterprise agreement. Different scope
provisions may be equally described as fair in the sense that no manifest unfairness
arises from their application. That is not to say that the parties may have a particular
preference or view about the scope and favour a different formulation. The tribunal’s
task however is not to determine the scope clause. Its task is to guard against
unfairness by being satisfied that the group can be described, in all the circumstances,
as fairly chosen.’
[81] In my opinion, the interests of the excluded employees are likely to be enhanced by
their inclusion in a single enterprise agreement covering all Vessel Crew. This finding tells
against the making of a majority support determination in this case.
[82] Seventhly, as mentioned earlier, the words of the Explanatory Memorandum as to the
assessment of whether a group of employees is ‘fairly chosen’ includes the way in which the
employer has chosen to organise its enterprise. Here, it is obvious the respondent has
organised its enterprise such as to have one enterprise agreement covering its Vessel Crew. It
does not wish to disturb this industrial arrangement. That the interests of the employer is a
relevant consideration in the assessment of whether a group of employees was ‘fairly chosen’,
was further emphasised by the comments of the Full Bench in Cimeco v CFMEU at para [21]:
‘It is also appropriate to have regard to the interests of the employer, such as enhancing
productivity, and the interests of employees in determining whether the group of
employees was fairly chosen.’
Given the expressly stated view of the respondent, this is a matter I have had regard to in
assessing whether the group of employees was ‘fairly chosen’ in this case; See: Interlloy.
[2014] FWC 6321
28
[83] Eighthly, the reliance by Mr Jenkins and Mr Fallone on the higher rates of pay for the
respondent’s employees working on the Harbour City Ferries contract is misconceived. There
is a clear and obvious rationale for paying those employees higher rates of pay or an
allowance for working on essentially commercially based passenger ferry services for the
New South Wales Government.
[2014] FWC 6321
29
[84] For the reasons herein expressed, I am not satisfied that the applicant has satisfied the
tests required by ss 237(2)(c) and (d) of the Act such as to warrant the making of a majority
support determination for ‘Marine Crew’ employed by Captain Cook Cruises. Specifically, I
conclude that the group of employees identified as the ‘Marine Crew’ are not geographically,
operationally or organisationally distinct and that it would be unreasonable in the
circumstances to make a majority support determination in the terms sought by the applicant.
The application must therefore be dismissed. An order to that effect will be issued
contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
Applicant in person.
Mr D Mahendra of Counsel for the respondent.
Mr J Fallone for the Australian Institute of Marine and Power Engineers (intervening).
Hearing details:
2014:
Sydney.
29 July
Printed by authority of the Commonwealth Government Printer
Price code G PR555324
ORK WORK COMMISSION FAIR THE SEAL OF
