Application by Noorton Pty Ltd T/A Manly Fast Ferry - [2018] FWC 4638

[2018] FWC 4638

The attached document replaces the document previously issued with code [2018] FWCA 
4521 on 7 August 2018. The medium neutral citation and PrintID have been amended. The 
paragraph numbering and a cross reference at paragraph [199(a)] have also been corrected.

Associate to Deputy President Sams

13 August 2018















1

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

Noorton Pty Ltd t/ a Manly Fast Ferry
(AG2017/3080)

DEPUTY PRESIDENT SAMS SYDNEY, 7 AUGUST 2018

Application for approval of an enterprise agreement – Sydney Harbour services – ferry and 
marine tourism industries – protracted negotiations over two and a half years – last round of 
negotiations with employees directly – consistent Union view that Ports, Harbours, Enclosed 
Waters Award would otherwise apply to employees – NSW Government contract for 
commuter ferry services – employer also engaged in marine tourism activities, such as whale 
watching – related proceedings before four members of the Commission – all employees are 
employed as casuals – narrow vote of employees to approve agreement after unsuccessful 
votes – identity of employer – whether Notice of Employee Representational Rights (‘NERR’) 
validly issued – whether employees ‘genuinely agreed’ to the Agreement – valid cohort of 
employees who voted – whether employees eligible to vote or will be covered by the 
Agreement – whether Agreement meets the Better Off Overall Test (‘BOOT’) – comparison to 
correct Modern Award – no doubt as the identity of the employer – no issues  as to whether 
the Agreement was ‘genuinely agreed’ by the employees – long standing casual employees 
who are regularly engaged – employees who voted were eligible to vote and would be 
covered by the agreement – detailed BOOT comparisons with rosters and timesheets – further 
undertakings proposed – agreement would pass the BOOT whether either the Ports Award or 
the Marine Tourism Award was the reference instrument – some lesser benefits compared to 
Ports Award outweighed on balance by benefits, including higher rates of pay and optional 
permanent conversion – BOOT satisfied in respect to existing and future employees 
(permanent full-time or part-time) – minor undertakings sought for clarity – views of 
bargaining representatives to be sought before final approval of Agreement. 

BACKGROUND

[1] This decision will determine an application filed by Noorton Pty Ltd t/a Manly Fast 

Ferry (the ‘Company’ or ‘applicant’ or ‘Manly Fast Ferry’), pursuant to s 185 of the Fair 

Work Act 2009 (the ‘Act’). The application seeks the approval from the Fair Work 

Commission (the ‘Commission’) of an enterprise agreement agreed to by employees of the 

applicant on 11 July 2017. The Agreement is titled Manly Fast Ferry – Sydney Harbour 

Services – On-Board Crew – GPHs and Hosts – Enterprise Agreement 2017 (the 

‘Agreement’). The application for approval of the Agreement was filed on 24 July 2017, 

thereby satisfying the requirements of s 185(3)(a) of the Act.

[2018] FWC 4638[Note: This decision has been quashed - refer to Full 
Bench decision dated 31 December 2018 [[2018] FWCFB 7224]

DECISION


E AUSTRALIA FairWork Commission




 

https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb7224.htm


[2018] FWC 4638

2

[2] It would be an understatement to describe the background to this application as 

protracted and torturous. It has its origins in a decision of the New South Wales Government 

in late 2008 to put to tender a contract for the high speed (Monday to Friday) commuter 

service between Circular Quay and Manly. Manly Fast Ferry was the successful tenderer. 

Prior to winning the contract the applicant only operated marine tourism services and at the 

time two old Workplace Agreements were in place to cover the separate contracted ferry 

services and the marine tourism/commercial vessel operations. The two agreements were 

respectively:

 Manly Fast Ferry & MUA – Sydney Harbour Ferry – Workplace Agreement 2009 

(‘MFF Ferry Agreement’); and 

 Noorton Pty. Ltd. Commercial Vessels & Whale Watching – General Purpose Hands 

– Workplace Agreement 2009 (‘Marine Tourism Agreement’)

Relevantly, although there were two separate agreements, employees would commonly work 

under the MFF Ferry Agreement in the morning and afternoon peaks and then operate the 

same vessel in the off peak, on marine tourism services, under the Marine Tourism 

Agreement. 

[3] During the initial contract period of 15 months, Manly Fast Ferry operated alongside 

the State Government operated Sydney Harbour Ferries on the Circular Quay to Manly 

service. Competition for these harbour ferry services became more intense from early 2010, 

until the Government in 2014, decided to seek a long term contract for only two ferry 

operators on the Circular Quay – Manly service, one of which would be the now privately 

operated Harbour City Ferries. The other operator was Manly Fast Ferry, which won a seven 

year contract commencing on 1 April 2015. 

[4] The applicant decided to replace the old MFF Ferry Agreement with a new agreement, 

intended, at the time, to only cover the ferry operations. Negotiations for the new agreement 

commenced in April/May 2015 with the Maritime Union of Australia (the ‘Union’), despite 

the amalgamation of the Union with the Construction, Forestry, Mining and Energy Union 

and the Textile, Clothing and Footwear Union of Australia in March this year, I shall continue 

to refer to the Union as the MUA. In cutting to the chase, negotiations have been ongoing for 








[2018] FWC 4638

3

over two years since that time until the filing of this application on 24 July 2017 – the 

applicant’s fourth attempt at having an agreement approved. Throughout this period there 

have been various related proceedings before at least three other members of the Commission 

and two earlier votes of employees which resulted in iterations of the Agreement being lodged 

in the Commission, but subsequently withdrawn by the applicant. 

[5] Throughout this period the central dispute between the applicant and the Union  has 

been, and continues to be, what Modern Award should apply to the employees under a single 

agreement covering both the ferry and tourism operations; namely:

 the Ports, Harbours and Enclosed Water Vessels Award 2010 [MA000052] ‘(Ports 

Award’); or

 the Marine Tourism and Charter Vessels Award 2010 [MA000093] (‘Marine Tourism 

Award’).

[6] Against the objections of the Union, the applicant put the proposed Agreement to a 

secret ballot vote of 49 employees to be covered by the Agreement (all of whom are casual) 

on 11 July 2017. By a narrow margin of 23 for and 21 against, the Agreement was approved. 

The application for approval (F16) filed by Mr Richard Ford, Managing Director, identified 

the applicant as Noorton Pty Ltd t/a Manly Fast Ferry.

[7] In the accompanying statutory declaration and ten annexures dealing mainly with the 

pre-approval steps and indicative rosters (Form F17), Mr Ford identified the two Modern 

Awards as the relevant reference instruments for the respective functions of ferry services and 

marine tourism operations. Mr Ford set out a number of benefits and conditions in excess of, 

or not provided for by the Modern Awards and a number of less beneficial terms. He attested 

that the Agreement satisfied the Better Off Overall Test (BOOT) whether the test was applied 

against the Ports Award or the Marine Tourism Award. 

[8] In an F18, filed by Mr A Jacka on behalf of the Union, on 8 August 2017, the Union 

did not support the approval of the Agreement for the following reasons:

(a) The Commission cannot be satisfied that the notice requirements, pursuant to s172(3) 

of the Act have been met. 








[2018] FWC 4638

4

(b) The Commission cannot be satisfied, pursuant to s186(2)(a) and s188 of the Act that 

the Agreement has been ‘genuinely agreed’ to by the employees covered by the 

Agreement. 

(c) The Commission cannot be satisfied that the group of employees to be covered by the 

Agreement was ‘fairly chosen’ (s186(3)). 

(d) The Commission cannot be satisfied, pursuant to s186(2)(d) of the Act that the 

Agreement passes the Better Off Overall Test. 

[9] Unsurprisingly, the Union disagreed with the employer’s F17 on the grounds that:

(a) the notification time was not 6 June 2017. There was no valid notification to 

employees;

(b) the reference instrument is the Ports, Harbours and Enclosed Water Vessels Award 

2010 only.  The Marine Tourism and Charter Vessels Award 2010 does not cover the 

employer or any of the employees covered by the Agreement; and 

(c) the Agreement does not pass the Better Off Overall Test.

[10] By this time the application was under review by the Commission’s Enterprise 

Agreement Triage Team and a report was prepared for the Panel Head, Deputy President 

Gostencnik on 24 September 2017. A number of concerns were raised by the Deputy 

President and communicated to the parties on 5 October 2017. The applicant provided certain 

undertakings in respect to span of hours and the Union continued to press its objections (as 

above). On 20 October 2017 the applicant’s solicitors, Holman Webb (Mr Stephen McCarthy) 

provided a 22 page response to further concerns raised by the Triage Team and the Union. On 

27 October 2017 the Union advised that it continued its opposition to the approval of the 

Agreement and requested an arbitration of the matter. The application was then remitted to me 

for hearing. On 7 November 2017, I issued directions for a hearing on 18 and 19 December 

2017. However, due to the unavailability of key witnesses, the hearing by consent, was 

relisted for 5 and 6 February 2018. In the meantime, the Commission, as presently 

constituted, heard and determined an application filed by the Union, pursuant to s 483AA of 

the Act, seeking orders for access to non-member records; see: The Maritime Union of 

Australia [2017] FWC 6228. These proceedings related to a dispute filed by the Union in 

which a determination was sought that only the Ports Award applied to the employees of the 








[2018] FWC 4638

5

applicant. This dispute remained unresolved, but ultimately was overtaken by the filing of this 

application for approval of the Agreement. 

[11] The hearing dates were further adjourned until 12 and 13 February 2018. Mr S 

McCarthy, Solicitor appeared for the applicant and Ms L Doust of Counsel, with Mr Jacka

appeared for the Union. Both parties were granted permission to be represented by lawyers, 

pursuant to s 596 of the Act. The hearing days were taken up with oral evidence and cross 

examination of Mr Ford. Directions for the filing of final submissions were issued, but 

extended, by consent, until the final submission was filed by the applicant on 17 April 2018.

THE EVIDENCE

[12] Evidence in this matter was provided by Mr Richard Ford, Director of Noorton Pty 

Ltd and Manly Fast Ferry Pty Ltd and Mr Paul Garrett, Assistant Secretary of the Sydney 

Branch of the Union, who was not required for cross examination. I observe that Mr Ford’s 

evidence, although helpful and comprehensively referenced from source documents, was 

more in the form of submissions, replete with opinions, assertions, and repetitive statements, 

rather than evidence in proper form. I shall take that into account when considering Mr Ford’s 

evidence.

Mr Richard Ford

[13] Mr Ford set out the history of the applicant’s operations and its winning of the seven 

year ferry services contract for the NSW Government. In addition to the Circular Quay/Manly 

commuter services, the business operates the following marine tourism and commercial vessel 

services:

(a) Sydney Harbour Eco Hopper (around the Harbour sightseeing service, which includes 

Taronga Zoo and Weekend Harbour Beaches services);

(b) Whale watching services;

(c) General charter vessel function services, catering for events such as weddings, social, 

family & business functions, Sydney-Hobart Race Day, New Year’s Eve Harbour 

cruises and the like; and








[2018] FWC 4638

6

(d) Manly to Sydney Aquarium/Darling Harbour service – although this service is treated 

differently.

[14] Mr Ford outlined the steps he took to issue the first Notice of Employee 

Representational Rights (NERR) to affected employees on 29 April 2015. Mr Ford made clear 

that the proposed Agreement was to apply only to the newly contracted ferry services. Mr 

Ford said that from the outset, the Union (acting as the ‘default’ bargaining representative) 

adopted a hostile and challenging approach to the bargaining process across a number of 

fronts simultaneously.  Despite this, the applicant continued to meet with, and negotiated with 

the Union and its delegates. Around June 2015, the applicant agreed to the Union’s proposal, 

to replace the two old Workplace Agreements with a single agreement covering both the ferry 

services business and the marine tourism operations. Mr Ford claimed the applicant agreed to 

do so on the understanding that a final outcome would involve a ‘blended and averaged’ 

approach to rates of pay and conditions. This was necessary to ensure cost competitiveness for 

its tourism and commercial operations. The applicant provided a summary of its proposal as 

follows:

‘a. Combining Ferry & Tourist services rates & conditions
The new MFF Enterprise Agreement Offer will now cover both:-
i. MFF’s Sydney Harbour ferry operations; and 
ii. MFF’s Sydney Harbour tourist services. 
What does this mean?
By “blending together and averaging” the different:-

 Wage rates; &
 Penalty rates; &
 Terms and conditions of employment;

That apply to MFF’s 2 separate areas of operation:
 Ferries &
 Tourism

MFF is now offering the employees one set of rates and conditions that will apply 
when employees are at work for MFF – whether to a ferry run or a tourist run. 

The “blending together” and “averaging” of the wage & penalty rates and conditions 
must be done in such a way as to ensure that the Company can operate both its ferry 
services as well as its marine tourist services without being priced out of the tourist 
sector. MFF’s proposed amended Agreement seeks to do this. 

[15] Mr Ford said this approach was maintained for the following two years of negotiations 

with some 25 draft agreements, all of which reflected this approach. It is contained in Clause 

5(c) and (d) of the Agreement now before the Commission for approval. It reads:








[2018] FWC 4638

7

‘c. Significant Feature of the Terms & Conditions of the Agreement

A significant feature of this new Agreement is to establish a single code of 
employment that is to cover both the Company’s Sydney Harbour public 
passenger ferry service operations as well as the Company’s Sydney Harbour 
commercial vessel/marine tourism services. Consequently, the rates of pay, 
penalty rates and terms and conditions of employment reflect the need to blend 
together and average the employment conditions standards that apply in the 
two separate maritime industry sectors covered by this Agreement. The two 
distinct maritime industry sectors are the “public passenger ferry services” 
sector and the “commercial vessel/marine tourism” sector and the two 
otherwise applicable Modern Awards that prescribe the two distinct minimum 
employment standards in relation to the two industry sectors are:-
i. The Ports, Harbours and Enclosed Water Vessels Award 2010; and 

ii. The Marine Tourism and Charter Vessels Award 2010.

d. The blending together and averaging of the rates of pay (in almost all cases) 
and employment standards to establish a single code of employment under this 
Agreement and the certainty that arises from the business’s ferry services 
contract with the NSW Government will:-

i. Allow the Company to offer its longer serving GPH or Host/Hostess 
casual employees the opportunity to convert from casual employment to 
permanent employment after an employee has rendered 6 months of 
service; and 

ii. Allow all employees who may, on any day, perform work in both the 
ferry services sector and the commercial vessel/marine tourism sector, 
to receive a common blended and averaged rate of pay for work at any 
particular time, with the exception of where an “Uplift Rate” may be 
payable to Casual Employees at certain specified times for work on 
ferry services;

iii. While at the same time ensuring that the Company can both operate its 
ferry services as and when needed while still being able to afford to 
compete in the commercial vessel/marine tourism sector and not be 
priced out of the commercial vessel/marine tourism sector market.’ 

[16] Mr Ford believed the Union had initially supported this ‘blending and averaging’

approach as demonstrated by its proposed wage scales in August 2015, showing an ‘all in’

General Purpose Hand (‘GPH’)/Deckhand rate of $50,000 pa (the new Agreement rate is now 

$53,547).

[17] Mr Ford maintained that if the rates and conditions of the Port Award were applied to 

the applicant’s marine tourism and commercial operations, it would make that sector of the 








[2018] FWC 4638

8

business financially unviable. This might force a wind down or withdrawal from these 

services. This would negatively impact on the number of employees and the available hours 

for existing employees. Mr Ford believed that the Union’s insistence of the Port Award being 

the only reference instrument for the purposes of the BOOT was contrary to its original 

position and appeared to have changed following dispute proceedings before Deputy 

President Dean in October 2016 (Matter B2015/1113).

[18] For the following reasons, Mr Ford said it was the applicant’s view that the two 

Modern Awards are the relevant reference instruments in respect to the application of the 

BOOT:

a. At present the applicant’s two distinct areas of business activities operate in two 
different cost competitive business markets. 

b. This has been the case since the commencement of the business’s ferry services in 
early 2009.

c. The two separate and distinct and still currently operating old Workplace 
Agreements (the ‘Old’ Agreements) reflect and support the applicant’s two 
separate and distinct business cost structures.

d. The other party to the Agreement – the employees – recognise and accept the 
reality of the need for this distinction and separation of the two parts of the 
business. 

Mr Ford claimed there was no impediment under the Act for the Commission to consider the 

‘unusual’ approach of applying two awards for the purposes of the BOOT, given the unique

environment the applicant operates in. It reflects the realities of the business and the intention 

of the applicant and the employees who are parties to the Agreement. He believed that the 

new Agreement will result in employees being ‘better off overall’.

[19] Mr Ford returned to the more recent negotiations for the Agreement. In rejecting the 

applicant’s latest settlement offer on 29 May 2017, the Union (Mr Garrett) declared ‘that

bargaining was concluded’. As a result the applicant issued a new NERR to relevant 

employees on 6 June 2017, as the earlier NERR was defective. Mr Ford added that 

notwithstanding the Union’s position, the applicant proposed a revised ‘best and final offer’ in 

a letter to the Union on 9 June 2017. It read in part:








[2018] FWC 4638

9

‘It must be said however it is simply not possible to reconcile the MUA’s insistence 
that the business’s Hopper services must be regarded as a ferry service with the 
reality that to accept the MUA’s position would both make the cost of operating the 
Hopper service untenable as well as be contrary to the fact that the Hopper service is 
designed to function as a marine tourism product and not a ferry service. 

Nonetheless, MFF does want to finalise these long drawn out EBA negotiations and 
reach a long overdue completion. With that in mind MFF would like to make one final 
endeavour to finalise the EBA negotiations by putting forward a “best and final”
Offer.’ 

[20] The Union was advised on 14 June 2017 of a proposed new Agreement which include 

the following:

1. The higher Casual Rate of $29.50/hour.
2. The consequential higher Casual Aggregated Weekend Rate of $34.50/hour.
3. The higher Uplift Rates for GPH’s on Ferry runs of:

a. $45.00/hour on Sundays between Manly and Circular Quay;
b. $31.50/hour After 6:00pm Monday to Friday; and 
c. $56.20/hour on Public Holidays between Manly and Circular Quay. 

The Union did not reply to this letter and instead, lodged a dispute application on 16 June 

2017, which was listed for conference before me on 29 June 2017 (matter C2017/3255). Mr 

Ford understood the Union through its dispute notification, had requested the Commission to 

determine the appropriate award coverage for the employees. 

[21] Mr Ford stated that the Union responded to the applicant on 19 June 2017 by now 

asserting underpayment of wages and claiming the Company was ‘bullying workers into 

accepting inferior conditions’. Mr Ford considered this was an attempt to ‘mix and confuse’ 

two separate issues – the bargaining process with allegations of underpayment of wages. 

[22] Mr Ford included comparison tables for the new Agreement and the two Modern 

Awards and indicative rosters, noting that all present employees are casual employees. Mr 

Ford contended that the tables demonstrate that:

(a) in every instance the Casual rates prescribed by the new Agreement are higher than
the comparable rates prescribed for Casual employees by either of the two Modern
Awards;

(b) in relation to future employment of Permanent employees, the Table shows the
new Agreement’s ordinary rates, overtime rates and penalty rates are higher than








[2018] FWC 4638

10

the comparable rates prescribed for Permanent employees by either of the two
Modern Awards, other than in four circumstances. The four circumstances are:

Ports & Harbours etc. Award
1. Permanent employees ordinary hours rate on a Saturday;
2. Permanent employees ordinary hours rate on a Sunday; and
3. Permanent employees overtime rate on a Sunday.

Marine Tourism etc. Award

4. Permanent Saturday Overtime rate after three hours of overtime.

(c) In relation to the above four instances where the Agreement rates are below the
comparative Modem Award rates, I would observe that when the two Modern
Awards rates are “blended and averaged”, there is then only one circumstance
where the Agreement’s rates are not higher than the averaged two Award rates, and
that is in the circumstance of permanent employees working ordinary hours rate on
a Sunday.

[23] All of this material was provided to the Union and in various proceedings before 

Commissioner Cambridge, Vice President Watson and Deputy President Dean. Mr Ford 

asserted that in every instance under an indicative four week roster, every employee, whether 

Casual, Part-Time or Full-Time employees, will be ‘better off’ under the Agreement.

[24] Mr Ford said that the only criticism the Union had ever made of the calculations was 

that the only work considered ‘marine tourism’ was ‘whale watching’; a position consistently 

rejected by the applicant. Nevertheless, for present purposes, Mr Ford applied the Union’s 

approach and again in every case, employees will be ‘better off overall’. Increases flowing 

from the Agreement (1 December 2017) will continue to ensure employees are ‘better off 

overall’.

[25] Mr Ford reiterated that, with one exception (a small number of Host/Hostess 

employees who are exclusively in marine tourism) the applicant operates the same vessels 

with the same crews in two different industries. The vast bulk of the employees are classified 

as General Purpose Hands (GPHs).

[26] Mr Ford noted that under the relevant State legislation (Passenger Transport Act 

2014) the only ferry service conducted by the business is the contracted Circular Quay/Manly 

service. None of the other services conducted by the applicant are ‘technically’ ferry services. 

It is not correct, as the Union contends, that any ‘timetabled service is effectively a ferry 








[2018] FWC 4638

11

service’. This has been explained to the Union on many occasions. Support for the applicant’s 

position arises from other legislative sources (Certificates issued under the Marine Safety 

(Domestic Commercial Vessel) National Law Act 2012 (Cth) and Marine Orders 503 and 504 

(Cth)). The effect of the certificates is demonstrated by its vessel, Ocean Dreaming II as 

follows:

When Ocean Dreaming II is operating as a passenger ferry the vessel is restricted to:-
1. A maximum of 23 passengers on the Sundeck
2. A maximum of 92 passengers. on the Upper Deck; and
3. No passengers are allowed on the Fore Deck.

However, when Ocean Dreaming II is operating as a marine tourism/charter vessel,
the passenger restrictions increase to become:-
1. A maximum of 55 passengers on the Sundeck
2. A maximum of 110 passengers on the Upper Deck; and
3. A maximum of 37 passengers on the Fore Deck.

[27] Mr Ford referred to the applicant’s principal market competitors which all employ 

employees under the Marine Tourism Award, and not the Ports Award. They are:

a. Matilda Cruises/ Captain Cook Cruises/SeaLink;
b. Fantasea Cruises; and
c. Rosman Ferries.

[28] Mr Ford observed that although the Circular Quay to Darling Harbour service is not 

gazetted as a ‘ferry service’ under the State Act, the applicant offered a concession to the 

Union to treat it as a ‘ferry service’. This is reflected in the coverage clause and the 

Agreement (Cl 5).

[29] Mr Ford’s evidence dealt with the applicant’s responses and undertakings offered to 

the Commission after requests for further particulars from DP Gostencnik. Mr Ford stressed 

that no employee performs exclusively ferry work and that the Ports Award is not the only 

Award to be considered for the purposes of the BOOT. 

[30] Mr Ford made particular reference to cl 12(g) and stated that this sub clause was not a 

‘make good’ provision to ensure BOOT compliance, because the Agreement already meets 

the BOOT. It is just a means by which an employee can check that the Agreement rates are 

being paid correctly. Mr Ford also addressed the Union’s claim that the permanent part-time 








[2018] FWC 4638

12

provisions do not match the corresponding provisions in the Ports Award. Mr Ford said 

firstly, that the Union ignores the part-time provisions in the Marine Tourism Award and in 

any event, the Agreement’s part-time provisions more than satisfy the BOOT in that they 

provide:

(a) a minimum of 4 ordinary hours work on any day; 

(b) a maximum of 11 ordinary hours on a day;

(c) a guaranteed minimum of ordinary hours for a Part Time Employee of 40% of a

full time employees 38 ordinary hours over a 4 week roster cycle i.e. a minimum 

of 64 ordinary hours per 4 weeks or an average of a minimum of 16 ordinary hours 

each week; 

(d) the right of an employee to seek an increase in their minimum percentage 

arrangements where their current minimum% is exceeded for 6 months or more; 

(e) the protection that an employee's guaranteed minimum % can only be reduced with 

the employee's agreement; 

(f) that each extra hour worked is paid for at the ‘Hourly equivalent Salary Rate’ 

prescribed by the Agreement, except for additional hours worked that are in excess 

of:

 11 hours on any day;

 48 hours in a week;

 96 hours In a fortnight;

 52 hours in a 4 week pay calculation period;

in which case the extra hours would be paid for at the rate of 1% for the first two

hours and then double time thereafter at the ‘Hourly equivalent Salary Rate’

prescribed by the Agreement.

[31] Mr Ford described as disappointing, the Union’s rejection of these conditions, given 

the flexibility welcomed by employees and the many months of negotiations on the issue. 

Specifically, Mr Ford rejected the Union’s claims that the Agreement does not:

(a) provide a minimum of three hours for casual employees. In fact, the Agreement 

provides a four hour minimum.








[2018] FWC 4638

13

(b) prescribe rates for Ticket Sellers, because the Agreement does not cover Ticket 

Sellers.

(c) provide for a Span of Hours. This is now covered by the applicant’s undertaking; see: 

para 153(i) following. Mr Ford expressly rejected the Unions claim as the span of 

hours being only those applying under the Ports Award. 

(d) provide for $1796 compensation for loss of personal effects. The rate proposed is 

$1698 which is $533 above the amount in the Marine Tourism Award.

(e) provide for a Bilge Allowance. This allowance is not found in the Marine Tourism 

Award and no employees would be expected to work in the ships bilge. If such work 

was required the provision of the Ports Award would apply by virtue of cl 14.12.

(f) provide an Expense Allowance. No reimbursement is found in the Marine Tourism 

Award. However, there would be no circumstance where an employee incurring a 

work related expense would not be reimbursed. An undertaking can be offered if the 

Commission considers it necessary. 

(g) provide a First Aid allowance. No employee is required to be qualified in first aid. 

(h) contain a Meal Allowance. These allowances are expressly included in the rates of pay 

which prescribes:

The Annual Salaries prescribed in Schedule 1 have been set to take into
account and to cover the following provisions of this Agreement:-

6. All otherwise applicable allowances, except for the allowances and the
other additional payments prescribed by Clause 26. Travel & Call Back
“Out of Hours”.

(i) contain a ships stranded or wrecked or on fire allowance. The allowance in the Ports 

Award relate to ships wrecked or stranded during a voyage. This does not relate to the 

work of the applicant’s employees.

(j) contain a provision regarding the transport of employees. This is incorrect as cl 14.22 

of the Agreement sets out the costs paid by the employer or transport provided by the 

employer. The clause also provides for an additional 15 minutes pay and a $10 travel 

expense when an employee starts or finishes at a different location on the same shift. 

(k) In addition, the applicant will provide an undertaking to only pay wages weekly or 

fortnightly. 

Mr Paul Garrett








[2018] FWC 4638

14

[32] Mr Garrett has responsibility for representing the industrial interests of members of the 

Union. He has extensive experience and practical knowledge of the maritime industry and is 

familiar with the history and operation of both Modern Awards. Mr Garrett has extensive 

experience in dealing with safety, industrial, government and regulatory issues affecting 

maritime workers operating in, or around Sydney Harbour, and he negotiated the 2004, 2006, 

2012, 2014 and 2016 Agreements covering agencies and companies operating Sydney Ferries.

[33] On behalf of the Union, Mr Garrett opposed the application to approve the Agreement. 

He was concerned that the Agreement does not comply with the statutory requirements under 

the Act, and undercuts the entitlements of employees when compared to the Ports Award. He 

was particularly concerned that it is now suggested that Noorton Pty Ltd is the employer of 

the employees, despite his dealings with Manly Fast Ferry Pty Ltd over recent times. At the 

time, Mr Garrett took the view, despite the applicant applying one rate for services between 

Circular Quay and Manly and a different rate for off peak services, they were all ferry 

services, covered by the Ports Award. 

[34] Mr Garrett included in his evidence the three NERRs issued by the applicant on 29 

April 2015, 14 September 2015 and 26 April 2016. Mr Garrett said that on 19 December 2016 

when a proposed agreement was submitted for approval by the Commission (Manly Fast 

Ferry Pty Ltd – Sydney Harbour Services – On Board Crew – GPHs and Hosts Enterprise 

Agreement 2016) Mr Ford swore a statutory declaration attesting to Manly Fast Ferry Pty Ltd 

as the true employer of the employees. Mr Garrett had understood this to be the case because 

the applicant had a contract with the NSW Government to deliver fast ferry services between 

Circular Quay and Manly. Mr Garrett’s own research disclosed that as at 19 June 2017, 

Noorton Pty Ltd was not registered as trading under the name of Manly Fast Ferry. This 

approval application was discontinued by the applicant on 13 February 2017. 

[35] Mr Garrett said that on 23 February 2017 Manly Fast Ferry issued another NERR to 

employees for a proposed agreement in respect to employees that are employed by Manly 

Fast Ferry as either a:

- General Purpose Hand (GPH);
- Host/Hostess;
- Junior General Purpose Hand (GPH); or a 
- Junior Host/Hostess;








[2018] FWC 4638

15

on the Company’s vessels in relation to the Company’s maritime tourism services on 
or about or out of Sydney Harbour and/or ferry service operations on or about Sydney 
Harbour. 

[36] When Mr Garrett wrote to the applicant in 2017 concerning underpayments to 

employees, at no time was it said by the applicant or its solicitor, that the Company was 

Noorton Pty Ltd. A further NERR was issued by Noorton Pty Ltd on 6 June 2017 which Mr 

Garrett was not made aware of at the time. Three days later, Mr McCarthy sent a ‘best and 

final’ offer for the Manly Fast Ferry P/L – Sydney Harbour Services – On Board Crew –

GPHs & Hosts Enterprise Agreement 2017. It was not the name used in the NERR of 6 June 

2017. A subsequent email on 14 June 2017 from Mr McCarthy, identified Noorton Pty Ltd as 

the employer party to the Agreement. This prompted Mr Garrett to file a dispute application 

with the Commission concerning:

 which modern Award currently applied to employees;

 which enterprise agreement currently applied to employees; 

 a breach of the Ports Award for alleged underpayment of wages; and

 who the employer was.

Mr Garrett claimed the above circumstances were baffling, and he was sceptical, because 

Noorton had been named as the employer of whale watching operations (marine tourism). A 

check of the ABNs on the employees’ pay slips did not shed any light on which Company 

was the true employer.  

[37] When the applicant put the Agreement to a vote, the employer was identified as 

Noorton Pty Ltd t/a Manly Fast Ferry. Mr Garrett made requests for further information, 

raised concerns about the access period and sought to have the vote of employees deferred. In 

the dispute notification response of 28 June 2017, the applicant continued to assert Noorton 

Pty Ltd as the employer. However, the vote scheduled for 29 June 2017 was cancelled.

[38] Mr Garrett referred to relevant applicable maritime legislation as to the definition of a 

‘ferry’. The NSW Marine Safety Regulation 2016 states:

ferry and ferry service have the same meaning as in the Passenger Transport Act 
2014.








[2018] FWC 4638

16

Note.

The Passenger Transport Act 2014 defines ferry as a vessel which seats more than 8 
adult persons, and includes a vessel of any class prescribed by the regulations under 
that Act for the purposes of that definition.

Mr Garrett said that all vessels operated by the applicant seat more than 8 adult persons. 

[39] Mr Garrett observed that all of the applicant’s Sydney Harbour services operate 

according to a timetable. He set out each of the following services and their timetables as at 

14 June 2018:

(a) Manly – Circular Quay

(b) Manly – Darling Harbour

(c) Manly – North Sydney 

(d) Manly – Pyrmont Bay 

(e) Manly – Watsons Bay

(f) Harbour Beaches Ferry

(g) Eco Hopper

(h) Whale Watching (Mr Garrett agreed that whale watching is seasonal, but it is still 

timetabled between May and December). 

[40] It was Mr Garrett’s evidence that the applicant has a high and regular turnover of 

employees. He estimated that in a period of two years there has been some 200 additional 

employees. Mr Garrett claimed the applicant hired a number of new casual staff immediately 

prior to the Agreement vote. He did not expect they would continue to be employed or be 

covered by the Agreement. Further, he was concerned that some of the employees may not 

have been entitled to vote, if they were employees of Manly Fast Ferry, and not Noorton.

[41] Mr Garrett responded to Mr Ford’s statement as follows:

(a) Mr Ford regularly voiced his concerns as to the correct Award to be applied, as 

it was apparent that he had costed his business on the basis that the Marine 

Tourism Award applied to all, or most of the work. Mr Garrett said he would 








[2018] FWC 4638

17

not have agreed to any arrangement which may have disadvantaged employees 

as to their rightful Award entitlements.

(b) Mr Ford was ‘cherry picking’ the lowest conditions from each of the Awards 

to be included in an Agreement. He gave an example of Juniors being included 

when there is no provision for Juniors in the Ports Award.

(c) Mr Garrett disagreed that the application for approval of the then Agreement 

was withdrawn in December 2016 because of the ‘opposition, objection and 

pressure’ from the Union. It was because the NERR was non-compliant. 

(d) Mr Garrett had regularly challenged the accuracy of the tables and rosters 

provided by the applicant. He maintained that 90% of the work is ferry work. 

[42] In a reply statement, Mr Ford said that the Union had been aware for years that 

Noorton Pty Ltd is the employer. For example in dispute proceedings in matter C2017/3255 

this was made clear in documents (payslips) provided to the Commission in 2017, for a 

number of employees for the period between May – July 2017. The Union even accepted 

Noorton was the employer when it first issued an NERR in April 2015. Nevertheless, the 

business is generally known as Manly Fast Ferry.

[43] Mr Ford explained the business strategy which originally began with establishing a 

new agreement between employees and Noorton Pty Ltd. It became an agreement between 

employees and the related entity of Manly Fast Ferry for ferry and marine tourism work. 

Manly Fast Ferry then returned to the original intention of an agreement between employees 

and Noorton Pty Ltd as a result of ‘commercially confidential’ matters, coinciding with the 

final stages of the Agreement negotiations in June/July 2017. It resulted in a decision to retain 

the structure of having Noorton as the employer of all employees. This is why the NERR

issued on 6 June 2017 was issued by Noorton Pty Ltd.

[44] Mr Ford denied that Noorton Pty Ltd had done nothing to initiate bargaining before it 

issued the 6 June 2017 NERR. He said that after Mr Garrett had declared bargaining at an 

end, he communicated directly with the employees for the purpose of negotiating and 

finalising an agreement. These communications included SMS text messages to employee 








[2018] FWC 4638

18

representatives, Beau Chippindale and Nicola Spata. On 2 June 2017, the applicant sought 

legal advice as to the way forward. This resulted in the NERR of 6 June 2017.

[45] Mr Ford responded to criticism that the applicant had not demonstrated how the 

employees who were to vote, were selected. Noorton Pty Ltd uses a roster system called 

easyEMPLOYER to manage the roster and prepare timesheets for payroll processing. The 

system categorises employees according to classifications GPH, Hosts, Sales, Master etc. 

[46] Mr Ford had downloaded the list of current GPH and Host employees on the 

easyEMPLOYER system at the time the invitation to vote was distributed. He said that if the 

Commission required further details, the applicant would be willing to do so, subject to the 

employees’ names being kept confidential. 

[47] Mr Ford rejected the allegation that there had been a substantial turnover of labour. At 

the time of the vote 31% of the employees had been engaged for over two years and a number 

of other former GPH employees had been promoted to Master positions. 

[48] Mr Ford set out the Company structure as follows:

The business ferry services, which include:-

a. Manly to Circular Quay; and
b. Manly to Sydney Aquarium/Darling Harbour service

are the business activities operated by Manly Fast Ferry Pty Ltd.

The businesses tourist activities, which include:

a. Sydney Harbour Eco Hopper (around the Harbour sightseeing) service;
b. Taronga Zoo & Weekend Harbour Beaches services; and
c. whale watching;

are the businesses operated by Noorton Pty Ltd.

This structural separation in the business reflect operations reflects the fact that Manly 
Fast Ferry Pty Ltd both:

a. Holds the ferry services contract with the NSW Government/Transport for 
NSW (TfNSW) which allows it to operate a commuter ferry service between 
Manly and Circular Quay; and

b. Has been granted an exemption by TfNSW to operate a commuter ferry service 
between Manly and Darling Harbour under the Passenger Transport 
Regulations 2007 (NSW). The exemption exempts MFF P/L from the statutory 








[2018] FWC 4638

19

requirement under the Passenger Transport Act (NSW) to hold a service 
contract with NSW Government/TforNSW in order to operate a commuter 
ferry service.

Noorton Pty Ltd is, and has been at all material times, the only employer of the 
employees:-

a. working on the business vessels while they perform all of the abovementioned 
services; and 

b. who are covered by the new Agreement.

Manly Fast Ferry Pty. Ltd. is wholly owned by Noorton Pty. Ltd.

Manly Fast Ferry Pty. Ltd. has no employees. In this regard I would further note that 
Manly Fast Ferry Pty. Ltd. is not, and has not been for many years, registered with the 
ATO for PAYG tax purposes.

[49] Mr Ford claimed that communications from the applicant in June 2017 which may 

have referenced Manly Fast Ferry were ‘typographical errors’. This fact was as reflected in 

the new Agreement naming Noorton Pty Ltd as the employer and Mr Garrett acknowledged 

as much. The earlier dispute application in which Manly Fast Ferry had filed a response, was 

because the Union had filed the application against Manly Fast Ferry. In any event, Mr 

Garrett had conceded Noorton was the employer.

[50] Mr Ford rejected Mr Garrett’s misrepresentation of the definition in the Passenger

Transport Act 2014 (NSW) as he failed to mention:

 Section 4 Definitions, goes on to define “ferry service” to mean “a public 
passenger service provided by means of a ferry”.

 Section 5 Public Passenger Services, then sets out a detailed definition on the 
meaning of public passenger service.

 Section 39(1) of the Act (significantly) is in the following terms:

“(1) A person must not operate a public passenger service that is conducted 
according to regular routes and timetables or according to regular routes and 
at regular intervals otherwise than under the authority of a passenger service 
contract.”; and 

 Section 39(2) of the [Passenger Transport Act 2014 (NSW)] provides that 
Section 39 does not apply to a “tourist service”.








[2018] FWC 4638

20

[51] Mr Ford regretted the Union’s claim that the tables and Award comparisons were 

inaccurate; particularly after many hours of preparation and presentation during the 

negotiations and in proceedings before three different Commission members.

[52] Mr Ford believed the Union’s issue is not about the accuracy of the calculations, but 

reflects the Union’s claims that it wanted larger wage increases and a greater proportion of 

ferry work compared to marine tourism work. Moreover, Mr Ford believed that on several 

occasions, the Union had indicated the parties were close to agreement, but no final 

agreement was achieved. Mr Ford acknowledged that the calculations were based on 

‘indicative rosters’ because they include future Part-Time and Full-Time comparisons in 

circumstances in which the applicant only presently engages Casuals. This is because the 

applicant has agreed to a new approach to move employees to more permanent employment, 

if they choose to do so. These rosters were provided to Deputy President Dean on 29 

September 2016 and further roster comparisons, showing start and finish times was provided 

to the Union, at their request, on 18 January 2018. Mr Ford made clear that employees are still 

‘better off overall’ under the rates of pay in the new Agreement, even if the Union’s position 

is accepted i.e. that all work is regarded as ferry work, except ‘whale watching’.

Cross examination of Mr Ford

[53] Mr Ford conceded that he was incorrect in his statements when he said there had been 

four votes of employees. He explained there were two actual votes and two other occasions, 

where the vote was notified, but later cancelled.

[54] Mr Ford agreed he commenced as a Director and Company Secretary on 19 July 1995. 

The Company was established at his instigation. As a result of a recent transaction, he no 

longer has any shares in Noorton Pty Ltd. His transfer of shares was to NRMA Marine Pty 

Ltd (NRMA Marine) which is now the major shareholder in the Company. He remains 

General Manager of Noorton, as an employee of NRMA Marine and reports to the Board, 

which has established a company known as Manly Fast Ferry. He said he did not include this 

development in his second statement, because he understood the Commission was only 

concerned with the circumstances leading up to, and the date of the vote in July 2017. 








[2018] FWC 4638

21

[55] Mr Ford is responsible for industrial relations for the applicant. He could not be sure, 

without checking, whether he remained a director of Noorton Pty Ltd or Manly Fast Ferry. Mr 

Ford accepted that, at one point, Noorton Pty Ltd held all the shares in Manly Fast Ferry Pty 

Ltd, but he could not be sure of the new structure, now NRMA Marine is involved. 

[56] Mr Ford confirmed that during the period from April 2015 to July 2017 he was in 

charge of managing the applicant with his brother. He is the person most across Manly Fast 

Ferry’s industrial and employment affairs. He understood that Transport NSW had agreed for 

the assignment by Manly Fast Ferry of the long term ferry service contract to NRMA Marine. 

Manly Fast Ferry also has certain regulatory provisions in respect to Darling Harbour and 

Milsons Point ferry services. 

[57] Mr Ford said that in respect to the applicant’s vessels Seacat I and Seacat 2, only one 

of them is in operation at the present time. Mr Ford claimed he could not source the survey 

certificate for Seacat I in the time ordered under a Notice to Produce. He could continue to 

make inquiries and find the survey certificate and produce it. He had previously not provided 

the survey certificate for the vessel ‘Totally Wild’, because it is not covered by the

Agreement. It has no GPHs or hosts on board. 

[58] Mr Ford was asked about the lists of employees who voted in the ballot for the 

Agreement’s approval. He claimed the way the applicant rosters employees to perform shifts 

is ‘commercially confidential’. Nevertheless, he agreed the rosters contain shifts that would 

not be covered by the Agreement. 

[59] Ms Doust pressed Mr Ford on the legal basis on which he had signed the Agreement. 

Mr Ford asserted that the legal name of the employer was Noorton Pty Ltd, but people refer 

to, and associate it as Manly Fast Ferry. The employees say they work for Manly Fast Ferry, 

but their payslips, group certificates and rosters come from Noorton Pty Ltd. Mr Ford 

accepted that when he attested to the F17 he had indicated that Many Fast Ferry was the name 

the Company traded under. Mr Ford was unaware that a business trading under a business 

name, must have the business name registered. Mr Ford added that Manly Fast Ferry Pty Ltd 

is wholly owned by Noorton Pty Ltd. However, he conceded Manly Fast Ferry is not 

registered as the trading name. Mr Ford explained that Noorton Pty Ltd derives revenue from 

tourism services and Manly Fast Ferry earns revenue from the ferry services. Mr Ford was 








[2018] FWC 4638

22

shown various references in documents, including an earlier draft agreement and emails, 

purporting to show Noorton Pty Ltd, trading under the name of Manly Fast Ferry. A letter to 

employees of 19 June 2017 advising, inter alia, of the ‘access period’ for the new Agreement 

and the NERR, were issued as being on behalf of Noorton Pty Ltd t/a Manly Fast Ferry. In 

this exchange with Ms Doust, Mr Ford said:

… I'm saying I put them in there because our employees understand the name of the 
agreement is ‘Manly Fast Ferry’, so the consistent reference to Manly Fast Ferry with 
Noorton Pty Ltd being the employer has them understand what we're talking about 
because it is a Manly Fast Ferry agreement for Sydney Harbour Services, on-board 
crew, GPH and hosts enterprise agreement.  ‘Noorton Pty Ltd’ is the employer.  
"Manly Fast Ferry" is the agreement. 
(Transcript, PN375)

[60] Mr Ford accepted that Noorton does not trade as Manly Fast Ferry, but he maintained 

that to the employees the agreement is (with) Manly Fast Ferry. Mr Ford insisted that in May 

2017 there was no link to the sale of the business to a change of respondency to an enterprise 

agreement.

[61] It was Mr Ford’s evidence that he was not aware of any document, in the possession of 

Noorton, which records the agreement of employees to accept employment. Mr Ford agreed 

he had responsibility for industrial matters, with advice from Mr McCarthy. He had issued the 

NERR in April 2015 to employees working on the Circular Quay to Manly Ferry service. He 

accepted it was an important part of the process to ensure the employer was correctly 

identified. The employer at that time (April – September 2015), was Noorton Pty Ltd, as 

Manly Fast Ferry had no employees. He explained the business strategy at the time:

‘Well, initially we proposed to the MUA an agreement which covered the GPHs and 
hosts working on the ferry service between Manly and Circular Quay. The feedback 
from the employees and the MUA was that the desire was to have one agreement that 
covered both the tourism work and the ferry work operated by the two separate 
entities, and so then it was – prior to April 2015 we had two workplace agreements, 
one was under the name of "Manly Fast Ferry" and one was under the name of 
Noorton Pty Ltd. So once the company agreed with the MUA's request and the staff's 
request to put them under one entity – one agreement, the decision was made by the 
company that we should employ under Manly Fast Ferry so that the one agreement 
and all employees would be covered under the one company, and that was our 
intention after the initial negotiations.’
(Transcript, PN430)








[2018] FWC 4638

23

[62] This proposal was not implemented. However, Mr Ford understood that once the 

Agreement was in place the applicant could transfer employees to another Company, 

providing the employees’ existing rights and entitlements were maintained. He believed that 

could happen now.  The employees were not asked about this at the time (July/August 2015) 

because the proposition did not proceed. Mr Ford said that around 14 September 2015 

employees of Noorton received an NERR, although that notice stated Manly Fast Ferry was 

the employer and bargaining with them would be ‘the arrangement going forward’. It wasn’t 

until May 2017 that Mr McCarthy explained that the NERR had to be reissued under the 

name of Noorton Pty Ltd. There had been a communication breakdown as to timing of when 

the transfer would occur. No steps were taken between September 2015 and 26 April 2016 to 

implement the decision and no consultation was had with employees about transferring them 

to a different entity. It did not happen.

[63] Mr Ford insisted Noorton was, and always has been the employer of the employees. 

Noorton remained the employer when the 26 April 2016 NERR was issued to GPH and Hosts 

engaged in marine tourism activities. Despite the NERR detailing Manly Fast Ferry as the 

employer, it was still the intention, at this point, to move in that direction. The same applied 

to another NERR issued on 20 May 2016. Mr Ford agreed that all of the documents issued to 

employees around 25 November 2016, maintain that Manly Fast Ferry was the employer. Mr 

Ford acknowledged that in the documents provided to the Commission, all information must 

be truthful. In any event, the application at that time was discontinued. 

[64] Mr Ford conceded that a new NERR issued on 23 February 2017 continued reference 

to Manly Fast Ferry as the employer. From this time until June 2017, the Union continued to 

bargain, but had not asked to bargain with Noorton. 

[65] In respect to the negotiations with Mr Beau Chippendale, Mr Ford agreed he was a 

Master at the time of the vote for the Agreement and did not vote. He was however a 

Deckhand throughout the two and a half years of negotiations. Ms Nicole Spata works in the 

Darling Harbour office and on the vessels at times as a GPH. She also manages the rosters. 

Neither Mr Chippendale nor Ms Spata were nominated as employee bargaining 

representatives. Mr Ford agreed that in his emails to them he continued to refer to Manly Fast 

Ferry as the employer. Mr Ford did not accept this was a significant issue for employees. 








[2018] FWC 4638

24

They all knew what was meant. He said he was told the legal name of the employer was 

irrelevant to them and they just wanted an agreement in place. 

[66] Questioning then turned to the voting list of employees. Mr Ford had prepared the list 

from downloaded electronic files. The NERR was issued on 6 June 2017. He informed 

Mr McCarthy on 19 June 2017 that new employees were being ‘added all the time’ and he 

wanted to make sure he captured all eligible employees to vote. He denied this was a 

reference to new employees added between 6 and 19 June 2017. 

[67] Mr Ford was shown a list of 49 names in answer to a Notice to Produce. The 

document recorded who voted and who did not vote on 11 July 2017. Mr Ford had utilised the 

rosters to establish if employees worked a shift before, or after the vote, the date employees 

commenced employment and their last login date. He said the first four columns of the 

document were downloaded from a company, Simply Voting, and the second four columns 

were transcribed by him from the applicant’s records.  

[68] Mr Ford was then asked to compare the voting lists with the actual rosters of 

employees. In respect to:

Employee A:
- Days worked before vote - 22 and 23 June;
- After vote – 20 and 21 July
- Not at work on day of vote.

Employee B:
- Worked up until 2 June 
- No annual leave up to and including the vote (5 weeks)
- intended to be reemployed.

Employee C:
- Worked some hours on 26 May 2017
- No further work until 7 October 2017 (four and a half months)

Employee D:
- Sales duties 13 – 15 July
- Raratonga whale research 19 July, 23 July plus
- employed since 2009.
- no indication he was performing deckhand duties after the vote.
- last login 4 February 2018.

Employee E:








[2018] FWC 4638

25

- last shift before vote - 10 June
- worked 10 – 12 July
- asks for annual leave to be paid out on 12 July 
- unknown if he left
- traineeship.

Employee F:
- Worked for the majority of shifts as a coxswain or Master in the week prior to the 

vote.

Employee G:
- sales employee in the office at Darling Harbour, 8am to 4:30pm shifts. 
- not working as a deckhand in sample roster, but has worked as a host.

Employee H:
- wharf hand performing deckhand work on 2 July and for the week up to the vote. 

Employee I 
- for the full roster period the employee is on unpaid leave in the United Kingdom. 

There is no record of the employee being at work prior to the vote. June payslips 
show the employee worked 16.5 hours as a deckhand, Darling Harbour service 5 
hours, Hopper 23 hours.

[69] Mr Ford agreed that Wharf Hands are not covered by the Agreement, but by the old 

Noorton Workplace Agreement 2009.

[70] Mr Ford said employees move across Sales, Wharf Hand, Deckhand and Host roles 

depending on the Company’s requirements for a particular shift or vessel. In response to 

questions from me, Mr Ford said that the old Workplace Agreement will continue to apply to 

employees working on the wharf, until that Agreement is replaced. The employees who move 

across from the wharf to a vessel will remain covered by two agreements for the foreseeable 

future. 

[71] In further evidence, Mr Ford said he had no access to, and cannot provide any material 

to identify how an employee voted. The vote was undertaken by an independent company 

which had been sourced, because it had been used for other agreement votes.

[72] Mr Ford was referred to the service timetable covered by the Manly Fast Ferry 

contract. He agreed there were changes to the timetable between June 2017 and June 2018. 

Services were added on weekdays and weekends and wharf departures were changed. 

Mr Ford said both the ferry services and the tourist services have increased since the vote. Mr 








[2018] FWC 4638

26

Ford said most of the vessels can operate on any route and are subject to change based on 

timetabling or maintenance requirements. The time sheets will not show this. However, the 

employee’s payslips show which vessel he/she worked on. Services such as Manly/Darling 

Harbour or Manly/North Sydney and Manly/Watsons Bay are designated ‘hopper’ services on 

the timesheets. Mr Ford added that there are additional services added in summer, such as the 

Harbour Beaches Ferry which does not operate on weekdays. When shown the published 

timetables on the website annexed to Mr Garrett’s statement, Mr Ford agreed that timetabling 

for ferry services also includes tourist services (hop on/hop off services) and loop services. 

Whale watching cruises run from May to December. Five vessels can be used, but GPHs do 

not work on the vessel ‘Totally Wild’. Mr Ford said the most accurate records of the work 

performed is the timesheets, as rosters might change due to the unavailability of a particular 

vessel.

[73] Mr Ford was asked about the Certificates of Survey of all the applicant’s vessels. The 

following are passenger ferries:

 Seacat I and Seacat II (not used on Manly Fast Ferry services)

 Arafura Pearl

 Ocean Rider (Operates Manly Fast Ferry)

 Ocean Trader and Ocean Wave (Operates Manly Fast Ferry and Hopper and Whale 

Watching)

 Ocean Flyer and Ocean Surfer (Operates Manly Fast Ferry, but due to size not used 

on Hopper service).

[74] Mr Ford agreed that some employees work after 6:00 pm, particularly during summer 

and some employees work on Sundays and Public Holidays (e.g. Harbour Beach Ferries). 

Schedule 2 of the Agreement provides for an ‘uplift’ for afternoon/evening work and 

Sunday/Public Holiday work, but only to the Circular Quay/Manly and Manly/Darling 

Harbour Services. This is because these are the only services the Company designates as ferry 

services.

[75] Mr Ford believed the number of employees since the vote (49) may be 10% higher or 

lower than 49. Mr Ford claimed that while a number of employees have expressed interest in 








[2018] FWC 4638

27

becoming permanent, the majority, particularly the longer term employees, who secure most 

of the weekend casual shifts, would prefer to remain as Casuals.

[76] In respect to Mr Ford’s conclusion that employees will be ‘better off overall’ 

irrespective of which Modern Award is the reference instrument, he was asked about his 

indicative rosters provided in these proceedings. Part of the calculations relate to Permanent 

Part-Time employees which were purely speculative, as no employee currently works 

Permanent Part-Time. The calculations were predicated on all employees electing to become 

permanent after 6 months, although it was voluntary. These proposals were worked through 

and discussed in proceedings before Commissioner Cambridge and Deputy President Dean. 

This model assumed 14 Part-time Permanents, 11 Full-Time Permanents and 4 Casuals. 

[77] Mr Ford said that sales employees were not included in the vote, although two who 

also worked on the vessels, were included. Mr Ford acknowledged the modelling did not 

include Hostesses or Juniors (the latter cannot be employed serving alcohol). Mr Ford agreed 

that Juniors could be employed in other roles on the vessel. He had not provided any 

modelling for Junior employees. Generally, there is one or two GPHs on a vessel. 

In re-examination

[78] Mr Ford reiterated that when bargaining commenced in April 2015 and ever since, the 

employees have been employed by Noorton Pty Ltd. Manly Fast Ferry did not employ any 

employees and is a wholly owned subsidiary of Noorton Pty Ltd. He reaffirmed that Noorton 

operates the Marine Tourism business and Manly Fast Ferry operates the Ferry services. 

Mr Ford said that most of the Company’s vessels are signaged with Manly Fast Ferry and the 

staff uniforms have Manly Fast Ferry logos, notwithstanding Manly Fast Ferry is not the 

employer. Mr Ford explained there is a crossover of operations in Sydney Harbour, but the 

revenues are separated ‘behind the scenes’ Mr Ford repeated that the 6 June 2017 NERR was 

issued in the name of Noorton Pty Ltd.

[79] Mr Ford understood that Mr Chippendale had been a delegate of the Union, as he 

attended most of the EBA negotiation meetings and was the main contact on site between the 

crew and the applicant. Despite negotiating directly with Mr Chippendale after 6 June 2017, 








[2018] FWC 4638

28

the applicant continued to communicate with the Union, as it did by writing to the Union on 

9 June 2017. 

[80] Mr Ford claimed that the applicant believed that 32% to 35% of the work was Tourism 

related and the remainder was Ferry work. By reference to the Certificate of Service for the 

vessel Ocean Dreaming II, Mr Ford said the regulators require different conditions, crewing 

and operating profiles when the same vessel operates marine or ferry services. This vessel 

operates commuter ferry services in the morning/afternoon peaks and whale watching from 

9:00 am to 4:00 pm.

[81] Mr Ford described the indicative  roster and comparison documents as follows:

It shows – this document outlines the vessels and their start and finish times for each 
shift, the length.  The next column designates the service that that particular shift is 
operating.  Then the start and finish times, weekend shifts – so this document is an 
embedded spreadsheet into the – sits in front of the previous document, and also the 
comparative tables.  So this outlines the indicative operating profile of the vessels at 
the time this process was done.  From there we can change or input the employees, be 
it permanent, part-time or casual, on particular rosters to fill the roster and to fill the 
shifts, and the result of these two combined will produce the comparison tables, 
calculations, against – so this designates the hours that they've worked, when they start 
and finish, and whether we designate it as ferry and tourism.  So this gives us 
flexibility to interrogate different profiles.  So for example, when we wanted to do the 
comparison when all work was ferry except for whales, we could toggle those columns 
in column five to the all-ferry work.  And that would give us different results.
(Transcript, PN1368)

[82] He then described the purpose of the applicant providing details of the employee’s 

payslips:

The payslips outline each individual operation, and you'll see, in the description 
column, if you look at page 1, you have a deckhand on MFF; you have a deckhand on 
the Darling Harbour service, a deckhand on whale watching, a deckhand on the 
Hopper service; training hours, travel.  So these payslips outline exactly what was 
worked.  The timesheets come from the roster system, which may be modified or 
changed, due to operational reasons, on any particular day, but the employees would 
submit an updated timesheet, or explanation if the services are changed.  So the 
payslips demonstrate exactly what was worked, according to the employee in the 
company.  The roster indicates how it was originally rostered and proposed.
(Transcript, PN1426)

SUBMISSIONS








[2018] FWC 4638

29

For the applicant

[83] In opening, Mr McCarthy put the following propositions:

(a) Noorton Pty Ltd was, and still is the employer of the employees who are employed 
under the new Agreement.

(b) Noorton Pty Ltd operates the marine tourism services part of the business.

(c) Manly Fast Ferry Pty Ltd operates the ferry services part of the business.

(d) Noorton Pty Ltd wholly owns Manly Fast Ferry Pty Ltd.

(e) Noorton Pty Ltd and Manly Fast Ferry Pty Ltd are related corporations.

(f) At the time of the filing of these Submissions i.e. on 5 March 2018, Richard Ford 
remains a Director of Noorton Pty Ltd and a Director of Manly Fast Ferry Pty Ltd. 

(g) The business operates under the brand name ‘Manly Fast Ferry’. This is reflected in 
the title of the new Agreement.

[84] In dealing with the pre-approval requirements, Mr McCarthy submitted that:

(a) On 6 June 2017 the Applicant issued a replacement NERR to each of the affected 
employees.

(b) Subsequently each affected employee was issued: 

 a written notification of the time, place and method of voting to be used on 29th

June 2017 – A copy is attachment 4 of the Company’s Form F17.
 A written request to vote on 30th June 2017 – A copy is Attachment 5 of the 

Company’s Form F17.

(c) The ‘access period’ was the 7 day period prior to 11th July 2017 i.e. from 4th to 10th

July 2017.

(d) The employees were provided with a copy of the terms of the Agreement by Email 
prior to the commencement of the access period.

(e) The employees were also provided access to the terms of the Agreement throughout 
the Access Period via the applicant’s intranet. The relevant material was posted prior 
to the commencement of the access period.

(f) The applicant took reasonable steps to explain the terms of the Agreement and its 
effect on the employees during the access period. 








[2018] FWC 4638

30

(g) The majority of employees who cast a valid vote agreed to approve the proposed new 
Agreement on 11 July 2017, which was more than 21 days after the NERR was issued.

(h) The group of employees covered by the Agreement were fairly chosen considering 
geographical, operational or organizational distinctness. The new Agreement covers 
all of the Company’s on-board vessel crew other than Officers i.e. General Purpose 
Hands and Host/Hostess employees. 

[85] Mr McCarthy submitted that the pre-approval processes and terms of the Agreement 

met all the statutory requirements under the Act.

[86] In respect to the BOOT, Mr McCarthy noted that unlike agreements where one 

agreement applies to different groups of employees covered by different awards, or where the 

major or substantial work is performed in an industry, in this case the approach should be 

different; see G.J.E. Pty Ltd [2013] FWCFB 1705 at [18] and [21] – [24]. In that case the 

28.37% of revenue was sufficient to determine the ‘substantial character of the business’ was 

in the retail industry and accordingly, this business was covered under the General Retail 

Industry Award 2010.

[87] In this case, the business has more than one character operating in more than one 

industry – ferry industry (65%) and marine tourism (35%). Mr McCarthy put that for the 

purposes of the BOOT, the Commission would determine, as an exercise of discretion that:

(a) there are two applicable Modern Awards applying at the same time; and

(b) to the same employees who are performing work in two different industries that 

would be covered by the two applicable Modern Awards in the same workplace at 

one and the same time. 

[88] Mr McCarthy noted that from the outset of negotiations, the Union had demanded and 

the applicant agreed to have one Agreement covering both industries, providing there would 

be a ‘blending and averaging’ approach to ensure a competitive cost structure in the marine 

tourism sector.

[89] In respect to the two Awards being applicable, Mr McCarthy said the Commission 

would take into account that:








[2018] FWC 4638

31

(a) two ‘old’ Workplace Agreements exist and still currently operate;

(b) the two ‘old’ Workplace Agreements will be replaced by one Agreement;

(c) two modern awards operate in different sectors of the maritime industry.

(d) legal and contractual recognition of the distinction between when a vessel operates as 

a ‘ferry’ and when the same vessel operates as marine tourism/charter vessel.

(e) Certificates of Survey issued under the Marine Safety (Domestic Commercial Vessel) 

National Law Act 2012 (Cth) also recognise this differentiation.

(f) Statutory recognition of the differentiation as set out in the Passenger Transport Act 

2014 (NSW); see s 39(1) and (2).

[90] Mr McCarthy identified a number of examples of tourism services, which do not 

require a service contract with the NSW Government: lunch, coffee, dinner cruises, jet boats, 

sailing cruises, shopper hopper services and whale watching. Mr McCarthy submitted that the 

existence of a timetable, or a vessel capable of carrying more than eight passengers, is not a 

determinative of a ferry service or a tourism service. It is determined by the purpose of the 

service and the type of passengers carried on the service, i.e. commuters or tourists. 

[91] Mr McCarthy submitted that the Award/Agreement comparisons, indicative rosters 

and calculation tables, tendered by the applicant, in respect to rates of pay, overtime and 

penalty rates disclose the following:

In every instance the casual rates prescribed by the new Agreement are higher than the 
comparable rates prescribed for Casual employees by either of the two Modern 
Awards.

In relation to future employment of Permanent employees, remembering that at 
present all employees are employed as Casuals, the Table shows that the new 
Agreement’s ordinary rates, overtime rates and penalty rates are higher than the 
comparable rates prescribed for Permanent employees by either of the two Modern 
Awards, other than in four circumstances. The four circumstances are:

Ports & Harbours etc. Award

1. Permanent employees ordinary hours rate on a Saturday;
2. Permanent employees ordinary hours rate on a Sunday; and 
3. Permanent employees Overtime rate on a Sunday.

Marine Tourism etc. Award
4. Permanent Sunday Overtime rate after 3 hours of overtime. 








[2018] FWC 4638

32

73. However as the Wage Table also shows, when the two Modern Awards rates are 
‘blended and averaged’, there is then only one circumstance where the Enterprise 
Agreement’s rates are not higher than the “averaged and blended” Award rates, and 
that is in the circumstance of permanent employees working ordinary hours on a 
Sunday. 

[92] All of these documents demonstrate that on all occasions, whether the employees are 

Casual or Permanent Full-Time or Part-Time employees, the employees will be financially 

better off under the Agreement, than the Awards. This has been extended by a 1.8% increase 

paid from 1 December 2017. Mr McCarthy emphasised that the rates, in fact, meet the 

Union’s position that ‘all of the shifts performed by employees are to be regarded as ferry 

work, except for whale watching’. Mr McCarthy rejected the Union’s claim that it did not 

have sufficient material to undertake its own calculations. These calculations had been 

provided to Deputy President Dean on 29 September 2016.

[93] In response to a concern as to the rates applicable to GPHs for overtime or work on 

Sunday and Public Holidays, the applicant proposed three ‘uplift’ allowances at Schedule 2 of 

the Agreement. This will ensure that:

… when casual GPH employees work on a ferry run either:-
a. After 6:00PM Monday to Friday; or
b. On a Sunday; or
c. On a Public Holiday;

the employee will be paid an hourly rate that is equal to or greater than the otherwise 
applicable rate for such work as prescribed by the Ports, Harbours and Enclosed 
Water Vessels Award. It should be noted that the increase from 1 December 2017 in 
the ‘uplift Allowances’ will ensure that the rates for such work will be greater in each 
instance than the rates prescribed in the PH&EVV Award.

[94] Mr McCarthy rejected the Union’s contention that the Agreement does not pass the 

BOOT. The Union’s case is based entirely on a false assumption that the Marine Tourism 

Award has no relevance or application to this matter. In addition, the Commission’s Triage 

Team had requested further information and appropriate undertakings as a result of its own 

inquiries and a submission put to it by the Union. The applicant had provided two detailed 

responses and source documents.  It had offered an undertaking in respect to ‘Span of Hours’ 

(which the Union rejected). Mr McCarthy relied on Mr Ford’s evidence as to the limitations 

on employment of Junior employees and why Junior rates are included to provide vocational 

training of young people which is found in the Marine Tourism Award.








[2018] FWC 4638

33

[95] In respect to the pre-approval steps, Mr McCarthy rejected the Union’s claim that the 

applicant had, since April 2015, consistently misrepresented the name of the applicant by 

identifying Manly Fast Ferry Pty Ltd as the employer of the employees, when on the 

applicant’s own view, Noorton Pty Ltd is, and always was, the correct employer. The question 

of the correct employer is a matter of fact. Noorton Pty Ltd was named as the employer on the 

first NERR on 29 April 2015. Moreover, the Union itself referred to Manly Fast Ferry in a 

publication it issued on 6 May 2015. In any event, the old Noorton Workplace Agreement 

will continue to apply to the employees, without a new agreement in place. This is well 

understood by the employees and the Union.

[96] Further, Mr Ford was at all material times a Director of Noorton Pty. Ltd and a 

Director of Manly Fast Ferry Pty. Ltd; the two companies are related entities under the 

Corporations Act; the operating businesses trade under the brand name of ‘Manly Fast Ferry’; 

Manly Fast Ferry Pty Ltd operates the ferry service operations of the business and Noorton 

Pty Ltd operates the marine tourism and commercial operations of the business. 

[97] Mr McCarthy emphasised that all payslips and group certificates had been issued in 

the name of Noorton Pty Ltd. There could be no misunderstanding as to the identity of the 

employer. Mr McCarthy relied on Mr Ford’s evidence; see: para [43] as to the changing 

business strategy as to the reason why the final NERR issued on 6 June 2017 was in the name 

of Noorton Pty Ltd.

[98] Separately the Union must have been aware that Noorton was the employer when the 

Union:

i) advised Noorton of a dispute on 16 June 2017 (matter C2017/3255); and 

ii) presented employee payslips in a right of entry dispute under s 483AA (Matter 

RE2017/786).

[99] Mr McCarthy addressed the Union’s submission that the Agreement was not 

‘genuinely agreed’ because Noorton has not complied with the requirements under 

s 173(1) and (2) in respect to notification time. That section reads:

173 Notice of employee representational rights








[2018] FWC 4638

34

Employer to notify each employee of representational rights

(1)  An employer that will be covered by a proposed enterprise agreement that is not a 
greenfields agreement must take all reasonable steps to give notice of the right to be 
represented by a bargaining representative to each employee who:

(a)  will be covered by the agreement; and

(b)  is employed at the notification time for the agreement.

Note: For the content of the notice, see section 174.

Notification time

(2)  The notification time for a proposed enterprise agreement is the time when:

(a)  the employer agrees to bargain, or initiates bargaining, for the agreement; 
or

(b)  a majority support determination in relation to the agreement comes into 
operation; or

(c)  a scope order in relation to the agreement comes into operation; or

(d)  a low-paid authorisation in relation to the agreement that specifies the 
employer comes into operation.

Note: The employer cannot request employees to approve the agreement under section 
181 until 21 days after the last notice is given (see subsection 181(2)).

[100] Mr McCarthy said that there is no statutory requirement for an employer to take a 

particular form of action, or to prove that it had agreed to bargain or initiated bargaining. This 

is evident from existing case law and the Commission’s Benchbook on enterprise bargaining. 

The decision in Uniline Australia Limited [2016] FWCFB 4969 does not support the Union’s 

submission; in fact, quite the reverse. The applicant had initiated bargaining and had issued a 

NERR within the 14 day time limitation. Even if the Union’s position is correct, the applicant 

initiated bargaining with Mr Chippendale and Ms Spata in text messages of 31 May 2017 and 

2 June 2017 prior to the last NERR issued on 6 June 2017. It is irrelevant whether Mr 

Chippendale and Ms Spata were bargaining representatives, as the Company was 

communicating directly with employees after the Union declared bargaining at an end. In any 

event, Mr Chippendale had been known as the MUA site delegate and had been involved in 

bargaining over a long period.








[2018] FWC 4638

35

[101] Mr McCarthy put an alternative submission that the issuance of an NERR is itself an 

act by the employer to initiate bargaining. This is because the prescribed terms of the NERR 

do no more than put employees on notice of their bargaining rights to representation: 

‘[The Employer] gives notice that it is bargaining in relation to an enterprise 
agreement ([name of proposed enterprise agreement]) which is proposed to cover 
employees that [proposed coverage].’  

[102] In addition it is clear that further communications with the Union continued after the 

issuance of the NERR with a ‘best and final offer’ conveyed to the Union on 9 June 2017.

[103] As to the cohort of employees identified as eligible voters, Mr McCarthy relied on the 

steps taken by Mr Ford; see: para [66]-[68], which used both an independent service provider 

and downloaded Company data showing:

- the Shift worked by the employee before or on the date of the vote;
- the Shift worked by the employee after the vote;
- the employees start date of employment with Noorton P/L; and
- the last date the employee logged on to the Company’s on-line roster system. 

[104] Mr McCarthy addressed each of the circumstances of eight unnamed employees 

identified in cross examination (Employees 2, 6, 11, 12, 16, 20, 33 and 37). No issue was 

raised which would have disentitled any of these employees from the vote. Mr McCarthy

concluded as follows that:

(a) All 49 employees given a vote (the cohort) had started with the business not 
only before the date of the vote, but had started with the business before the 
end of the previous financial year (i.e. before 30 June 2017) and so had all
started at least 11 days before the date the vote took place on 11 July 2017.

(b) 38 of the 49 employees given a vote (i.e. 77.5%) started with the business more 
than one year before the vote.

(c) 30 of the 49 employees given a vote (i.e. 61%) started with the business more 
than 6 months year before the vote.

(d) 17 of the 49 employees given a vote (i.e. 35%) started with the business more 
than 2 years before the vote.

(e) All 49 employees given a vote (i.e. 100%) worked for the business after the 
date on which the vote was conducted on 11 July 2017.








[2018] FWC 4638

36

[105] This breakdown also demonstrated the Union’s claim of a high turnover of labour was 

wrong. There was no uncertainty that Noorton had always been the legal employer. It 

followed that all 49 employees were employed at the time of the vote and will be covered by 

the Agreement; see: National Tertiary Education Industry Union v  Swinburne University of 

Technology [2015] 232 FCR 246 (‘Swinburne’) and McDermott v Automotive, Food, Metals, 

Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing 

Workers’ Union (AMWU) [2016] FWCFB 2222 (‘McDermott’) where a Full Bench said at 

[32] and [35]:

‘[32] There is no issue that enterprise agreements were intended by the legislature to 
be capable of covering casual employees, the difficulty is ascertaining when a casual 
employee ought be regarded as an employee “employed at the time” within the 
meaning of s.181(1). In relation to permanent employees it is relatively straight 
forward exercise.

…

[35] The Commissioner was of the view that there was something wrong with the vote 
occurring while employees were not actually performing or being paid for performing 
work at the time of the vote. This in our view was incorrect; the status of the 36 casual 
employees at the time of the vote is a natural and expected phenomenon of being 
employed on a casual contract as per the Full Bench decision in Smiths Snackfood. In 
our view it would be inappropriate and counter intuitive to disenfranchise casual 
employees of a right to vote on an agreement that determines their wages and 
conditions on the basis that they were not rostered on to work on the day/s of the vote, 
or during the 7 day access period. 22 There are obvious implications for voting 
manipulation adopting this approach. Swinburne is not authority for the proposition 
that a casual employee is only “employed at the time” they are rostered to work and 
are being paid. Swinburne eschewed the proposition that employed at the time 
included “usually employed”.’

[106] Mr McCarthy contended that the facts of this case were even more telling than in 

McDermott. All the Casual employees here will be covered by the Agreement when 

performing work on board vessels operated by the applicant as either a GPH/Deckhand or a 

Host/Hostess. Their employment is regular and systematic. This is evidenced by:

 a 7 year ferry service contract with the NSW Government requiring ongoing crew 

for the applicant’s vessels; 

 timesheets for all 49 employees demonstrate work rosters in advance;

 timesheets show when employees are absent on unpaid leave;

 all 49 employees worked both before and after the vote;








[2018] FWC 4638

37

 employee start dates are identified and employees (including long term) are  

expected to return to work after recorded leave absences; and

 the applicant recognises that the employees have unfair dismissal rights as regular 

and systematic Casuals.

[107] Mr McCarthy rejected, as misrepresentation of the facts, the Union’s claim that the 

employees had not been asked to vote to approve the Agreement, but rather had been asked to 

approve a concept of making an agreement; this being contrary to s 182 of the Act. These 

facts were that the title ‘Manly Fast Ferry – Sydney Harbour Services – On Board Crew –

GPH & Hosts – Enterprise Agreement 2017’ appeared in all the relevant communications 

with the employees including:

a) an email and the attached proposed Agreement, dated 30 June 2017;

b) a screenshot of each employee’s Intranet access copy of the proposed Agreement; 

c) a summary and explanation of changes document;

d) the notice to employees of the date and place of the vote, dated 29 June 2017;

e) formal notice of the voting process, dated 29 June 2017;

f) employer request to vote, dated 30 June 2017; and

g) employer’s summary and explanation of changes.

Given this material, there can be no doubt employees understood they were being asked to 

vote to approve the Agreement.

[108] Mr McCarthy rejected the allegation that s 188(c) was not complied with. The Union’s 

position was that the applicant misrepresented that the Agreement needed to be approved ‘by 

a majority of employees’, rather than a majority of those who cast a valid vote. The correct 

legal position was clearly set out in the Notice to Employees of the voting process which 

stated:

“Counting the votes:-

[For your information, under s.182(1) of the Fair Work Act 2009 “… the Agreement is 
made when a majority of those employees who cast a valid vote approve the 
Agreement” i.e. 50% + 1 constitutes “approval”.].








[2018] FWC 4638

38

[109] Mr McCarthy also rejected a similar misrepresentation submissions as to the true 

operator of the business. Noorton Pty Ltd has no interest in the provision of the ferry services. 

This is relevant as the issue is whether Noorton is the employer of the employees covered by 

the Agreement - which it is. Secondly, the allegation is wrong, as Noorton is the employer of 

all the employees in the business which operates marine tourism and charter vessels. This is a 

dual role, as Mr Ford explained in cross examination.

For the Union

[110] Ms Doust submitted that the Commission could not be satisfied that Noorton Pty Ltd 

is an employer capable of making an enterprise agreement or of making an application for 

approval of an agreement, pursuant to s 185 of the Act. This was because from 14 September 

2015 to 5 June 2017, Mr Ford repeatedly issued NERRs, and correspondence and he had 

sworn documents before the Commission under the hand of Manly Fast Ferry. Mr Ford also 

repeatedly represented Manly Fast Ferry as the employer to the employees and the Union. Ms 

Doust noted that the F16 and F17 filed with an earlier Agreement in December 2016 refers at 

various points to the employer as Manly Fast Ferry. Moreover, it is still contended that the 

Manly Fast Ferry Pty Ltd & MUA - Sydney Harbour Ferry - Workplace Agreement 2009 

identifies Manly Fast Ferry as an employer of the employees engaged on vessels operating on 

the Circular Quay/Manly ferry service. Even if the Union was aware that Noorton was party 

to the Commercial Vessels and Whale Watching Agreement, this does not make it more likely 

the current employees are, and always were employed by Noorton.

[111] Ms Doust said that despite the Union applying for an Order to Produce in respect to 

letters of engagement and details of the commencement of each employees offered a vote, no 

such material was forthcoming. There is nothing to substantiate the existence of any contracts 

of employment between the applicant and each employee offered a vote. 

[112] Mr Ford’s explanation about ‘evolving events’ and ‘change of strategy’ and then not 

proceeding with the business restructure is not credible. Nor was Mr Ford’s evidence that it 

was not until May 2017 that he became aware, after legal advice, that the NERR needed to be 

changed. Given Mr Ford was at all times being advised by Mr McCarthy, it is unbelievable 

that the employer would proceed to negotiate an enterprise agreement and issue NERRs by an 

entity, other than the legal employer. Ms Doust put that there is no scope in Part 2-4 of the 








[2018] FWC 4638

39

Act for the making of an enterprise agreement between a party which is not currently the 

employer in the business concerned. This is clear from the ordinary meaning of the term 

‘employer’ in s 15 of the Act and the meaning of a national system employer under s 14. 

Given there was no evidence of ‘miscommunication’ between Mr McCarthy and Mr Ford, the 

Commission would find his explanation ‘inconceivable’.

[113] Ms Doust submitted that the Commission would not regard Mr Ford as a reliable 

witness, of care and precision, as to the status of employees when:

a) he mistakenly said in a signed statement there had been four votes of employees 

(admittedly accepting this mistake in oral evidence);

b) he failed to mention in his second signed statement that a major change in ownership 

of the applicant had recently taken place, being the acquisition of Mr Ford’s majority 

shareholding in Noorton by NRMA Marine;

c) he had difficulty answering questions about the new corporate structure and was 

unclear as to whether he continued to be a Director of either Manly Fast Ferry or 

Noorton; and

d) he continued to ‘cavalierly’ describe Noorton Pty Ltd t/a Manly Fast Ferry when that 

name is not a registered entity. He clearly lacks an understanding of the distinction 

between the two entities and the regulatory environment in which they operate. 

[114] Ms Doust claimed that payslips and Survey Certificates were created after the event. 

They do not demonstrate which entity engaged the employees, according to a contract of 

employment. Accordingly, the Commission would not be satisfied that Noorton is the 

employer of every one of the employees in the business, or the applicant was capable of 

negotiating an enterprise agreement with the employees.

[115] Ms Doust then dealt with each of the matters under ss 186 and 187 of the Act which 

are required to be satisfied for the Agreement to be approved. She noted that s 181(2) serves 

an important function of ensuring a period of at least 21 days after employees have been 

informed of their bargaining rights before a proposed agreement is put to a vote. 

[116] Ms Doust said that the effect of section 173 and section 174 read together is to require 

the taking of reasonable steps by the employer (not some other entity) to give an NERR:








[2018] FWC 4638

40

(a) in the prescribed form (s174);

(b) to each employee who would be covered by the agreement (s173(1)(a)), who 
was employed at the time the employer (and not any other entity) either agreed 
to bargain or had initiated bargaining; and

(c) as soon as practicable, and not later than 14 days, after that time.

[117] A notice in the proper form given by an entity, other than the employer, would not be 

a notice given under s173(1). Nor would a notice given before the notification time as 

defined. Obviously, if an attempted NERR failed to meet the requirements of s 173(1) then 

the 21 day time period would not commence to run and the request to vote could not be 

satisfied; see: Uniline Australia Limited [2016] FWCFB 4969 at [109].

[118] Ms Doust put that even accepting the applicant is correct as to the identity of the 

employer, none of the earlier NERRs (29 April 2015, 14 September 2015, 26 April 2016, 23 

February 2017), issued by Manly Fast Ferry were otherwise defective, by not including the 

phone number of the Fair Work Commission Infoline.

[119] In addition, Ms Doust said the NERR of 6 June 2017 was invalid because it was not 

issued as soon as practicable and not later than 14 days after the notification time for the 

Agreement, being the time the employer agrees to bargain or initiates bargaining. Ms Doust

contended that nothing was done by Noorton to ‘initiate’ or ‘agree’ to bargain in the 14 day 

period, prior to 6 June 2017. The highest the applicant’s evidence went on this issue were the 

text messages to Mr Chippendale and Ms Spata. Nothing in these messages evinces any 

intention of Noorton to initiate bargaining or that Mr Ford intended to bargain. The subject is 

about what the employees should do, not what Noorton wanted to do. Ms Doust observed that 

Mr Chippendale was not entitled to vote and did not vote and neither he, or Ms Spata were 

bargaining representatives appointed by other employees. Moreover, no evidence was 

adduced from Mr Chippendale or Ms Spata and there was no evidence that either of them 

sought to bargain and Noorton therefore ‘agreed to bargain’ (with them).

[120] Ms Doust submitted that the only action of approaching anything like bargaining was 

the 14 June 2017 email which enclosed a proposed agreement to be put to the vote. That 

communication was too late to satisfy the requirements of s 181(2) of the Act. For the reasons 

earlier mentioned, bargaining could not have been initiated by Noorton on 29 April 2015.








[2018] FWC 4638

41

[121] Ms Doust dealt with the question of whether the employees said to be entitled to vote, 

were employees who were employed at the time of the request to vote and who will be 

covered by the Agreement. This goes to whether the Agreement has been ‘genuinely agreed’ 

to be a majority of those employees who cast a valid vote to approve the Agreement 

(s 181(1)). This involves three elements:

(a) whether the correct cohort of employees had been requested to vote;

(b) whether the votes that were cast were votes to approve the agreement; and

(c) if they were, whether such votes constituted a valid majority.

[122] Ms Doust expressed real doubts as to whether the cohort of employees were in fact 

employed by Manly Fast Ferry, in circumstances where: 

(a) all the employees are Casual;

(b) there is a substantial turnover of labour; and

(c) there was the engagement of new Casual employees immediately prior to the vote.

[123] Relying on Swinburne, Ms Doust put that it is not enough that a casual employee 

might be ‘usually employed’; rather it must be established, with certainty, that the person is 

employed at the time.  Further, a ‘future likelihood’ of someone being covered by an 

agreement, is insufficient; see: Cimeco Pty Ltd v Construction, Forestry, Mining and Energy 

Union and Others [2012] FWAFB 2206 and Construction, Forestry, Mining and Energy 

Union v Hamberger [2011] FCA 919; 195 FCR 74. Section 188 of the Act will not be 

satisfied if persons ineligible to vote, did vote and this may have affected the result; see: 

University of New South Wales re University of New South Wales (Professional Staff) 

Enterprise Agreement [2010] FWAA 9588.

[124] By reference to the redacted information of the list of employees and their timesheets. 

Ms Doust set out a list of employees who voted, and who the Union claimed were either not 

employed at the time of the vote, or would not be covered by the Agreement. The facts 

associated with each unidentified employee were drawn from the timesheets provided by the 

applicant. The table is as follows:

Employee No. Relevant Facts
2  Voted








[2018] FWC 4638

42

 Not at work on the day of vote (11 July 2017)
 Ex 5 shows worked on 22 and 23 June and then 

on 20 and 21 July
 MUA contends FWC would not be satisfied on 

evidence was “employed at the time”
6  Not at work on day of vote

 Ex 5 shows last day of work before vote Friday 2 
June 2017

 Noted as travelling in South America from 3 June 
2017

 Ex 5 shows next shift worked 4 September 2017
 MUA contends FWC would not be satisfied on 

evidence was “employed at the time” when the 
employee was not at work for three months, or 
that there was basis for concluding he “will be 
covered” at that time. No evidence to show any 
definite arrangement for the return of the 
employee.

11  Voted
 Not at work on day of vote
 Ex 5 shows last date worked 26 May 2017
 Ex 5 shows next shift worked 7 October 2017
 No claim of any leave arrangement
 MUA contends FWC would not be satisfied on 

evidence was “employed at the time” when the 
employee was not at work for over four months or 
that there was basis for concluding he “will be 
covered” at that time. No evidence to show any 
definite arrangement for the return of the 
employee.

12  Voted
 All timesheet entries for employee in Ex 4 and Ex 

5 show worked: “Darling Harbour Area 
Sales Staff”; not in role covered by 
agreement, no evidence to show when he 
performed any deckhand/GPH/host duties

 Employee marked as off on leave – “Rarotonga 
Cook Islands Whale Research from 19 July”; 
company aware for a week or two in advance; no 
evidence that employee had a scheduled date of 
return, such that it could be said he would be 
covered by the agreement.

 MUA contends FWC would not be satisfied on 
evidence was “employed at the time” or that there 
was basis for concluding he “will be covered” at 
that time. No evidence to show any definite 
arrangement for the return of the employee. No 
proper basis to conclude that he “will be covered” 
by agreement, in the sense of performing work 








[2018] FWC 4638

43

within its classifications.
16  Voted

 Ex 4, p 18 records employee on holidays to Japan 
from 26 June 2017

 Ex 4 does not show any shift worked by 
employee prior to date of vote

 Not at work on date of vote
 Ex 5 shows shifts worked 20 – 22 July 2017
 MUA contends FWC would not be satisfied on 

evidence was “employed at the time”
20  Voted

 Employee was on a traineeship (which by their 
nature are limited as to time)

 Ex 5 shows shifts worked on 10, 11 12 July 2017; 
trainee asking to have annual leave paid out on 12 
July 2017, the day after the ballot

 No evidence of shifts subsequent to 12 July 2017
 Mr Ford unable to say whether traineeship 

concluded as request for leave payout suggests
 MUA contends FWC would not be satisfied that 

there was proper basis for concluding he “will be 
covered” by the agreement. The FWC would infer 
that the employee requested his annual leave be 
paid out because he was leaving employment and 
that there was no proper basis to conclude that he 
“will be covered” by agreement, in the sense of 
performing work within its classifications once 
the agreement is approved.

33  Voted
 Majority of shifts worked shown in Exhibits 4 and 

5 as Master V or Coxswain
 Deckhand shifts worked only on 10, 11 and 12 

July
 MUA contends FWC would not be satisfied that 

there was proper basis for concluding he “will be 
covered” by the agreement in the sense of 
performing work within its classifications once 
the agreement is approved.

37  Voted
 All entries in timesheets in Ex 4 and 5 for period 

between 26 June and 17 July show employee 
working as “Darling Harbour Area Sales 
Staff” 

 No records of any performance of 
deckhand/GPH/Host shifts produced

 MUA contends FWC would not be satisfied that 
there was proper basis for concluding he “will be 
covered” by the agreement in the sense of 
performing work within its classifications once the 








[2018] FWC 4638

44

agreement is approved.

38  Voted
 Ex 4 and Ex 5 show employee not at work 

between 26 June 2017 and 23 July 2017; marked 
as “Booked flights for family wedding in the UK”

 No evidence of any shifts performed subsequent 
to date of vote

 MUA contends FWC would not be satisfied on 
evidence was “employed at the time”

[125] Ms Doust did not dispute that a casual employee did not necessarily have to be 

engaged on the day of the vote. However, the principles in Swinburne do not extend to 

employees who are not present in the workplace for over four months or where there is no 

expectation an employee will be offered further work upon their return from unpaid leave. Ms 

Doust put that the Commission could not be confident that employees 12 and 37 above had 

performed a shift covered by the Agreement. Given that a single invalid vote would change 

the outcome of the vote, the Commission could not be satisfied the Agreement was made in 

accordance with s 182 of the Act. In addition, the requirement that the vote be to approve the

Agreement, was not what the employees were asked when the question posed was whether 

they agreed that a new MFF Enterprise Agreement for GPHs and Hosts be made?

[126] Pursuant to s 188(c), Ms Doust dealt with whether there were other reasonable 

grounds why the Agreement might not be ‘genuinely agreed’. Section 188(c) imputes a

concern for the authenticity and moral authority of the Agreement; see Construction, 

Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1999) 93 

FCR 317 (‘CFMEU v AIRC’). Consideration of the circumstances relevant to s 188(c) are not 

limited. Ms Doust submitted the combined effect of all the circumstances surrounding the 

history of this Agreement, gives rise to the type of concern contemplated by s 188(c). These 

circumstances included the uncertainty over the applicable Award; the confusing and 

changing identity of the true employer of the employees and other misleading information, 

such as advice the Agreement would be approved if a majority of employees voted in favour, 

rather than a majority of the valid votes cast in the ballot which was the earlier explanation 

posed by the employer.

[127] Ms Doust then dealt with the Union’s BOOT contentions. The Union maintained that 

the relevant Award is the Ports Award as Noorton is in the ports, harbours and enclosed water 








[2018] FWC 4638

45

vessels industry. The classifications in the Agreement, such as GPH and Host are identified in 

that Award. Ms Doust relied on clause 4.1 of the Award to make good this proposition. It 

reads:

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.

[128] Ms Doust said that while the Union agreed the classifications in the Marine Tourism 

Award include crew roles such as Deckhand, GPH and Host roles, there is a significant 

exclusion in the Award related to ferry activities. Clause 3.1 of the Marine Tourism Award 

reads:

‘The “marine tourism and charter vessel industry” is defined by that Award to mean: 
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.’

[129] Ms Doust added that a ‘ferry’ is defined under the Marine Safety Regulation 2016 and 

Passenger Transport Act 2014 (NSW) as a vessel seating more than eight adult persons. All of 

the applicant’s vessels fall within that definition (except perhaps for Totally Wild). The 








[2018] FWC 4638

46

applicant’s vessels are timetabled to provide over 1000 services each week between Manly, 

Circular Quay, Darling Harbour, North Sydney, Pyrmont and Watsons Bay (700 of these are 

Manly/Circular Quay passenger services). This would be sufficient to establish that the 

employer is wholly, or substantially engaged in activities not contemplated by the Marine 

Tourism Award. In addition, Ms Doust said that the Eco Hopper service is a regular and 

scheduled service. In any event, the fact a vessel might include sightseeing hop on/hop off 

services during some hours, is not sufficient to overcome its predominant purpose as a ‘ferry’. 

The Harbour Beaches ferry also operates a total of 28 regular and scheduled services. It is a 

transport service, and in any event, a small proportion of the applicant’s business. Ms Doust

put that the applicant’s reliance on the State Act when the Federal Act applied, was 

misconceived and not explained. 

[130] Ms Doust observed that the applicant had not provided any evidence of the extent of 

its charter, whale watching or special event services and, tellingly, did not include this work 

in its BOOT modelling. This is because it is a very small proportion of the shifts worked by 

employees. Ms Doust rejected Mr Ford’s evidence that it was the Company’s position that 32 

– 35% of the hours worked are in the tourism sector. The ‘Company’s position’ is not 

evidence of the factual position, particularly when no evidence was provided to support it. 

Accordingly, the Commission should determine that the Ports Award is the relevant Award 

for the purposes of the BOOT and although a submission that the two Awards apply is novel, 

it does not detract from this proposition.

[131] Ms Doust set out the following matters as disadvantageous for the employees when 

compared to the Ports Award:

(a) The absence of a requirement for part-time employees to have an agreed regular 

pattern of work, and for any variation to be agreed in writing (cl 10.4(c) & (d));

(b) The absence of a minimum 2 hour engagement for part-time employees (cl 10.4(e));

(c) The absence of a minimum 3 hour engagement for casual employees (cl 10.3(d));

(d) The inclusion of ‘Junior Employees’ at clause 11.c of the Agreement. There is no 

‘Juniors’ in the Ports Award;

(e) The absence of a classification covering the role of ‘ticket seller’;

(f) Clause 12 of the Agreement provides that for permanent employees, the rates in 

Schedule 1 incorporate all shift penalties, weekend penalties, public holidays 








[2018] FWC 4638

47

(except in relation to the additional payments for weekly employees when they work 

on a public holiday), annual leave loading and all other allowances payable. 

Depending on the hours and shifts actually worked by an employee, that provision 

has the capacity to disadvantage an employee;

(g) The Agreement is less beneficial than the Ports Award in respect of the allowances 

in 14.7, 14.12, 14.12, 14.14, 14.15, 14.17; 14.21, 14.22, 14.27;

(h) Clause 12.g. is inconsistent with the decision of the Full Bench in Shop, Distributive 

and Allied Employees Association v Beechworth Bakery Employee Co Pty Ltd t/a 

Beechworth Bakery [2017] FWCFB 1664 (‘Beechworth’).

(i) The Ports Award provides that wages will be paid weekly or fortnightly. Clause 13 

of the Agreement permits, (by agreement) with a single employee or majority of 

employees and the Company, for wages to be paid either four weekly or monthly;

(j) Clause 16.a of the Agreement does not provide for a span of hours, but allows for up 

to 11 ordinary hours per day. Clause 18.2 of the Award provides for a span of hours 

and prescribes 8 ordinary hours. Span of hours affects entitlements to overtime 

payments. The absence of a span of itself is disadvantageous before any 

consideration is given as to the monetary impact: the existence of a span is likely to 

impose discipline on the employer in respect of rostering and the management of 

work hours.

[132] Ms Doust noted that the Union had undertaken a BOOT analysis of 20 employees, 

based on the redacted timesheets and payslips for the period 10 July to 23 July 2017, by 

reference to the Agreement and the Ports Award in the following circumstances:

 Normal hours

 Saturday hours

 Sunday hours

 Training hours

 Travel time 

 Working after 6:00 pm

[133] Ms Doust submitted that this analysis demonstrated that:








[2018] FWC 4638

48

(a) For the relevant period, employees 1, 2, 3, 8, 9, 41, 42, 43, 45, 47 and 49 (that is, 

55% of the employees analysed) would have been ‘worse off’ under the Agreement, 

than they would have been if paid under the Ports Award;

(b) One significant source of the disparity is Sunday work. For that work, the 

Agreement provides the aggregated weekend rate in Table 1 of Schedule 2 of $35.40 

per hour, whilst Sunday work under the Ports Award attracts a payment of $44.98 

(with a 100% loading in cl 20.3). Under the Agreement, the Sunday ‘uplift’ rate 

($45.00) is payable only in respect of the Circular Quay – Manly service. Other 

vessels operating on a Sunday do not attract that ‘uplift’;

(c) A further major source of disadvantage is transport/travel. The Ports Award 

provides at cl 14.22 for travelling time to and from the employee’s home, to be paid 

at ordinary rates when the employee is required to commence before 6.00 a.m. or 

finish after 11.00 p.m. The clause also provides for transport to be provided. No 

similar provisions are in the Agreement;

(d) Where an employee starts or finishes at a location, other than their usual location, 

the Ports Award provides, at clause 14.22(b) and (c) for payment whilst travelling 

between locations (at the overtime rate if not by the worker’s own vehicle, and for a 

minimum of half an hour if travelling in such vehicle) and either the payment of 

travel expenses, or a mileage allowance. In short, travel costs are defrayed. Clause 

26 of the Agreement provides for an employee to receive an additional 15 minutes 

payment and reimbursement of travel costs up to $10.00. It is difficult to imagine 

any worker being able to travel between any of the applicant’s work locations in less 

than 15 minutes at a cost which does not exceed $10.00;

(e) Another source of disparity is work beyond 6.00 p.m. Under the Ports Award, rates 

for an ‘afternoon shift’ (that is, a shift ending after 6.00 p.m. and before midnight) 

attract an hourly rate of 115% of the ordinary time rate, or an additional $3.37 per 

hour. That rate is applied for each hour of the shift. Under Cl 12(d)(iii) and Table 2 

of Schedule 2 of the Agreement, hours worked after 6.00 p.m. on ‘ferry work’ 

attract an additional $2.00 per hour. The ‘undertaking’ provided by the applicant in 

respect of span of hours has no impact on this issue, as it applies in respect of ‘day 

work’.

[134] Ms Doust observed that while the applicant’s indicative rosters were based on a 

speculative assumption of 11 Permanent, 14 Permanent Part-Time and 4 Casual employees 








[2018] FWC 4638

49

when the entire work force is casual, Mr Ford accepted the applicant could not know how 

many employees would take up the permanent option. Accordingly, the Commission could 

have no confidence in the probative value of the applicant’s calculations. 

[135] In respect to there being no Junior classifications in the Ports Award, it was noted that 

the applicant might engage Juniors as GPHs. In those circumstances the rates are significantly 

lower than the casual GPH and Host rates in the Ports Award. There would be a real prospect 

Junior employees might be engaged in a Host/Hostess role at half the rate than would apply 

for a GPH role. 

Applicant’s reply submissions

[136] Mr McCarthy put that earlier invalid NERRs and associated documents are of no 

relevance to the present application before the Commission. The only relevant NERR is that 

issued on 6 June 2017 under the name of Noorton Pty Ltd; the Company who is, and always 

has been the employer of employees to be covered by the Agreement.

[137] Mr McCarthy submitted that no adverse inference can be drawn by the fact there are 

no ‘letters of appointment’ or ‘contracts of employment’ for the employees; all of whom are 

engaged as Casuals. There is no legal requirement for written contracts to exist for there to be 

contracts of employment between Noorton and its Casual employees. Any suggestion of 

impropriety by Noorton in this respect should be soundly rejected. In any event, there is clear 

documentary evidence of contracts of employment, being numerous payslips, group 

certificates and timesheets. Further, the employees are specifically engaged under two current 

old Workplace Agreements.

[138] Mr McCarthy rejected criticism of Mr Ford and the applicant for confusion over the 

use of the brand name, Manly Fast Ferry. Mr Ford’s evidence on this matter was clear, 

credible and honest. In any event, the only relevant circumstances relate to the NERR of 

6 June 2017, citing the correct name of the employer. There was nothing ‘cavalier’ about Mr 

Ford’s approach to the use of the name Manly Fast Ferry, given it is the name commonly 

understood by employees, the public and in the industry generally. For surety, and on advice, 

Noorton Pty Ltd has now registered the business name of Manly Fast Ferry (23 March 2018). 








[2018] FWC 4638

50

Mr McCarthy insisted Noorton Pty Ltd was both competent to make the new Agreement and 

make application to the Commission for approval of the Agreement. 

[139] Mr McCarthy addressed each of the Union’s contentions as follows.

[140] The applicant only relies on the NERR issued under the name of Noorton Pty Ltd on 6 

June 2017. It does not seek to rely on any of the earlier NERRs save for the fact they 

demonstrate that bargaining had been ongoing since 29 April 2015 with Noorton Pty Ltd, 

commonly known as Manly Fast Ferry.

[141] Mr McCarthy rejected the Union’s submission that nothing was done by the applicant 

in the 14 days prior to the 6 June 2017 to initiate bargaining or agree to bargaining. He relied 

on Mr Garrett’s declaration that ‘bargaining was concluded’ and the applicant’s ongoing 

communication directly with persons it understood to be bargaining representatives of the 

employees (and the MUA), Mr Chippendale and Ms Spata; see: Maritime Union of Australia, 

The v Maersk Crewing Australia Pty Ltd [2016] FWCFB 1894 (‘Maersk’) at [34] and [35]. 

There can be no doubt the applicant had ‘agreed to bargain’ by its conduct and actions prior 

to the issuance of the NERR on 6 June 2017. There is no evidence to the contrary; see: 

Maersk at [49]. In any event, further ‘toing and froing’ occurred, including with advice to the 

Union of the Company’s ‘best and final’ offer.

[142] As to the correct cohort of employees requested to vote, Mr McCarthy referred to the 

uncontested evidence as to the periods of service of the employees (77.5% had worked for the 

Company for over six months) as clearly demonstrating there was no ‘substantial turnover of 

labour’ as claimed by the Union, or that there was a sudden influx of new Casual employees 

before the vote. Rejecting the notion that employees were not regular and systematic Casuals, 

Mr McCarthy referred to the method of payment set out in clause 10.3(c) of the Ports Award 

and noted the Union conveniently left out the bolded wording.

(c) Casual employees must be paid at the termination of each engagement, but may 

agree to be paid weekly or fortnightly. 

[143] Mr McCarthy drew the following summary conclusions from Table 1 at para [124] 

above:








[2018] FWC 4638

51

(a) 5 of the employees (No. 2., 6., 11., 16. and 38) were absent on a period of 

leave at the time of the Vote. 

(b) All 5 employees on leave were expected to resume work and all 5 employees 

did resume work for the applicant after their period of leave.

(c) Employee No. 6 – who was on leave – did not vote.

(d) Employee No. 12 is a Ticket Seller who also performs shifts as a Deckhand 

and therefore was entitled to vote.

(e) Employee No. 20 worked on the day of the vote as a Deckhand and was 

entitled to vote.

(f) Employee No. 33 worked as a Deckhand on the day of the vote and was 

entitled to vote.

(g) Employee No. 37 is a Ticket Seller who also performs shifts as a Deckhand 

and was therefore was entitled to vote.

[144] Mr McCarthy maintained that all 49 employees who cast a vote were employed at the 

time of the request to vote and will be covered by the Agreement. 

[145] In rejecting the Union’s submission that there was uncertainty as to whether an 

employee would still be employed by the employer in the future, Mr McCarthy observed that 

no such requirement (as to certainty into the future) exists under s 181. In fact s 53 of the Act 

provides that an enterprise agreement covers an employee ‘if the agreement is expressed to 

cover (however described) the employee’.

[146] Mr McCarthy rejected the ‘no other reasonable grounds’ (s 188(c)) argument of the 

Union and the decisions relied on; see: paragraph [126] above as being applicable in this case. 

The Commission would have no concerns about impugned, improper or misleading conduct 

of the applicant as alleged by the Union. On the contrary for over two years, the applicant has 

been acting in good faith with the Union (including in related proceedings before three other 

members of the Commission) for a new Agreement. There has been no egregious behaviour, 

by act or omission of the applicant, for the Commission to find that the Agreement was not 

‘genuinely agreed’ by the employees under s 188(c).








[2018] FWC 4638

52

[147] In respect to the exclusivity of the Ports Award in this case, and this matter being of 

fundamental disagreement between the Company and the Union. Mr McCarthy recalled the 

history of negotiations from April 2015 and the Union’s ‘in principle’ agreement to:

(a)one Agreement covering both industry sectors; and

(b)achieving this in a cost competitive and effective way through a ‘blending and 

averaging’ approach to wage rates and conditions.

[148] Mr McCarthy stressed that in the two and a half years since and with over 20 draft 

Agreements, these principles were reflected in the Agreement’s terms; most notably in cls 5 

and 6 of the Agreement now before the Commission. Mr McCarthy questioned the Union’s 

current position that all of the work performed by the business is ‘ferry’ work when it had 

initially sought to expand the coverage of a single Agreement from only ‘ferry services’ to 

cover both ‘ferry’ and ‘marine tourism’ operations. The truth is the Union’s own position and 

actions reflected the reality of the business’s operations in both industry sectors (as does the 

two Modern Awards). Mr McCarthy further noted that in two and a half years of bargaining 

the Union had never sought an order from the Commission as to the correct reference 

instrument. 

[149] Mr McCarthy submitted that reliance on a statutory definition of a ‘ferry’ as any vessel 

seating more than eight adult persons, is overly simplistic and does not reflect the wider 

statutory framework which reflects the reality. He reaffirmed there are only two ferry services 

(Manly/Circular Quay and Circular Quay/Darling Harbour). The remainder of the services are 

marine tourism services. In addition, reliance on timetables does not establish a ‘ferry’

service. A marine tourism business would not be able to operate efficiently unless customers 

had knowledge of scheduling and timetabling.  

[150] Mr McCarthy rejected the submission that State based legislation has no relevance to 

the determination of Federal industrial Award coverage. This ignores the extensive range of 

state legislative provisions and licencing regimes directly impacting on the coverage and 

operation of Federal awards, such as in mining, trades and transport.








[2018] FWC 4638

53

[151] As to the BOOT compliance, Mr McCarthy relied on the applicant’s earlier 

submissions and specifically addressed each of the Union’s submissions; see: paragraph [131] 

above, as follows:

a) The part time provisions arise from the Marine Tourism Award. Part time employees 

are guaranteed 64 hours in each four week cycle, with a minimum of four hours and 

maximum of 11 hours per day (The MUA claimed no minimum of two hours a day). 

In any event, hourly rates under the Agreement are higher than either Modern Award 

($26.62 versus $22.48 (Ports Award) and $20.15 (Marine Tourism Award))

Overtime over 11 hours is double time ($53.24).

b) Mr McCarthy emphasised that the applicant’s commitment to provide for an optional 

casual conversion to permanent employment after six months service, was a 

significant benefit to employees under the Agreement.

c) Casual employees will continue to be provided with a four hour daily minimum - one 

hour more than the Ports Award.

d) As to Junior rates, Mr McCarthy relied on his earlier submissions, see: paragraph 

[135] above. However, the applicant would be willing to consider an undertaking if 

the Commission had any concerns. 

e) Ticket sellers are not included in the Agreement, as they do not work on board vessels, 

such as GPHs and Hosts/Hostesses.

f) Mr McCarthy relied on Mr Ford’s evidence as to the Union’s claim that the 

Agreement does not provide for certain allowances payable under the Ports Award or 

are less than equivalent allowances under that Award; see: paragraph [31] above.

g) Mr McCarthy relied on his earlier submissions as to the ‘make good’ provision in 

clause 12(g). The Beechworth decision does not apply in this case as the Agreement is 

already BOOT compliant. Clause 12(g) does no more than offer a further surety to 

employees to that effect.

h) Mr McCarthy confirmed that the applicant will provide an undertaking that employees 

will not be paid either four weekly or monthly.

i) In respect to span of hours, Mr McCarthy referred to his earlier submissions and 

referred to the following undertaking provided to DP Gostencnik on behalf of the 

applicant:

Span of Ordinary Hours for Daywork








[2018] FWC 4638

54

a. For Ferry Work:
i. Full-time employees – Employees ordinary hours of work while on daywork 
shall be worked between 5:00am to 6:00pm Monday to Friday, for not less 
than 5 consecutive ordinary hours and not more than 11 consecutive ordinary 
hours on a day; 

ii. For Part-time employees and Casual employees – Employees ordinary 
hours of work while on daywork shall be worked between 5:00am to 6:00pm 
Monday to Friday, for not less than 4 consecutive ordinary hours and not more 
than 11 consecutive ordinary hours on a day. 

b. For Marine Tourism Work: 

i. Full-time employees – Employees ordinary hours of work while on daywork 
shall be worked between 5:00am to 11:00pm Monday to Friday, for not less 
than 5 consecutive ordinary hours and not more than 11 consecutive ordinary 
hours on a day;

ii. For Part-time employees and Casual employees – Employees ordinary 
hours of work while on daywork shall be worked between 5:00am to 11:00pm 
Monday to Friday, for not less than 4 consecutive ordinary hours and not more 
than 11 consecutive ordinary hours on a day. 

[152] Mr McCarthy said that the applicant’s submissions and attached Excel spreadsheets 

responded to the Union’s BOOT analysis of the payslips and timesheets of 20 employees for 

the period 10 July to 23 July 2017. Firstly, he noted that the analysis relied on by the Union 

were if the employees were all employed exclusively under the Ports Award and secondly, a 

number of corrections needed to be made to the Union’s calculations because of double 

counting and misallocation of hours. Thirdly, the Union had not compared the travel 

provisions correctly as between the travel provisions under the Ports Award compared to the 

Agreement. They are not ‘like with like’. This provision makes up for 90% of the Union’s 

negative BOOT calculation. Mr McCarthy said the Agreement’s travel time and allowance 

clauses provide an additional allowance when an employer starts work and finishes work at 

different locations and must travel back to the place of origin. This is a different concept to 

work commencing before 6:00 am. In addition the Agreement has separate Travel Outside of 

Ordinary Hours/Call Back provisions (clause 26(b)).

[153] Mr McCarthy submitted that employees will continue to start work from 5:00 because 

some employees prefer it. While recognising that under the Union’s modelling, some 

employees might be ‘worse off ‘by being exclusively employed under the Ports Award, in 

every example, the employees are ‘better off’ under the Agreement, where there is a 








[2018] FWC 4638

55

combination of the two Awards. It is also important to note that the time snapshot of two 

weeks will change, as employees rotate shifts resulting in an ‘evening out’ of any adverse 

impact. Mr McCarthy submitted that the Commission would prefer the Company’s indicative 

rosters tendered earlier in the proceedings, because they indicate the financial benefits the 

employees will receive in the future. For example this analysis:

(a) Accurately reflects how the business will run in the future taking account of the new 

provisions of the Agreement;

(b) Calculates the BOOT over a reasonable rostering period, not just one past 2 week 

period of work;

(c) Calculates the BOOT in relation to all future classes of employees, i.e. Casuals, Full 

Time employees and Part Time employees, and not just the past practice of all 

employees being Casuals; and

(d) Even demonstrates a scenario where employees will be ‘better off’, even in the 

circumstance that all work performed by the business is ‘ferry’ work, except whale 

watching. 

[154] Mr McCarthy put an alternative submissions should the Commission not be satisfied 

that the applicant has met all the pre-approval compliance steps. He put that these proceedings 

should be adjourned, until after the Federal Parliament passed the Fair Work Amendment 

(Abolition of 4 yearly Reviews of Modern Awards and Other Measures) Bill 2017. This 

proposed legislation, inter alia, would give the Commission the discretionary power to waive 

any minor procedural defects when approving an enterprise agreement, provided that the 

integrity of the agreement and its approval by employees, is unaffected. 

CONSIDERATION

[155] In my assessment, this application and the Union’s objections to it, requires the 

Commission to determine a number of matters under six broad headings. These are:

1. Whether Noorton Pty Ltd is an employer capable of making an enterprise agreement 

and making an application for approval of the Agreement (the ‘standing’ issue). 

2. Whether the applicant, Noorton Pty Ltd complied with all of the statutory pre-

approval steps for the making of an enterprise agreement (the ‘genuinely agreed’ 

issue)








[2018] FWC 4638

56

3. Whether the correct cohort of voters were employed at the time of the vote for the 

approval of the Agreement and/or are to be covered by the Agreement (the ‘vote’ 

issue). 

4. Whether there were other reasonable grounds for believing the Agreement had not 

been ‘genuinely agreed’ by the employees (the ‘no other reasonable grounds’ issue).

5. Whether the Ports Award is the only Award which would otherwise cover the work 

performed by employees of Noorton Pty Ltd (the ‘single Award’ issue). 

6. Whether the Agreement satisfies the Better Off Overall Test (the ‘BOOT issue’). 

[156] I will proceed to deal with each of these issues by reference to the statutory provisions 

to which they relate, the submissions and evidence of the Union and the applicant and any 

conclusions thereto. 

Issue 1 - Whether Noorton Pty Ltd is an employer capable of making an enterprise 

agreement and making an application for approval of the Agreement (the ‘standing 

issue’). 

[157] Section 172(2) of the Act sets out who will be covered by a proposed enterprise 

agreement and reads as follows:

‘(2) An employer, or 2 or more employers that are single interest employers, may 
make an enterprise agreement (a single-enterprise agreement ):

(a) with the employees who are employed at the time the agreement is made 
and who will be covered by the agreement; or

(b) with one or more relevant employee organisations if:

(i) the agreement relates to a genuine new enterprise that the employer or 
employers are establishing or propose to establish; and

(ii) the employer or employers have not employed any of the persons 
who will be necessary for the normal conduct of that enterprise and will 
be covered by the agreement.’

[158] Section 173 sets out the statutory requirements in respect to the issuance of NERRs as 

follows:

‘173 Notice of employee representational rights








[2018] FWC 4638

57

Employer to notify each employee of representational rights

(1) An employer that will be covered by a proposed enterprise agreement that is 
not a greenfields agreement must take all reasonable steps to give notice of the right to 
be represented by a bargaining representative to each employee who:

(a) will be covered by the agreement; and

(b) is employed at the notification time for the agreement.

Note: For the content of the notice, see section 174.

Notification time

(2) The notification time for a proposed enterprise agreement is the time when:

(a) the employer agrees to bargain, or initiates bargaining, for the 
agreement; or

(b) a majority support determination in relation to the agreement comes 
into operation; or

(c) a scope order in relation to the agreement comes into operation; or

(d) a low paid authorisation in relation to the agreement that specifies the 
employer comes into operation.

Note: The employer cannot request employees to approve the agreement under 
section 181 until 21 days after the last notice is given (see subsection 181(2)).

When notice must be given

(3) The employer must give the notice as soon as practicable, and not later than 14 
days, after the notification time for the agreement.

Notice need not be given in certain circumstances

(4) An employer is not required to give a notice to an employee under subsection 
(1) in relation to a proposed enterprise agreement if the employer has already given the 
employee a notice under that subsection within a reasonable period before the 
notification time for the agreement.

How notices are given

(5) The regulations may prescribe how notices under subsection (1) may be 
given.’








[2018] FWC 4638

58

[159] Section 174 deals with the content and form of the NERR; noting it must be in the 

exact form prescribed by the regulations; see: Application by Peabody Moorvale Pty Ltd 

[2014] FWCFB 2042. It reads:

‘174 Content and form of notice of employee representational rights

Application of this section

(1) This section applies if an employer that will be covered by a proposed 
enterprise agreement is required to give a notice under subsection 173(1) to an 
employee.

Notice requirements

(1A) The notice must:

(a) contain the content prescribed by the regulations; and

(b) not contain any other content; and

(c) be in the form prescribed by the regulations.

(1B) When prescribing the content of the notice for the purposes of paragraph 
(1A)(a), the regulations must ensure that the notice complies with this section.

Content of notice—employee may appoint a bargaining representative

(2) The notice must specify that the employee may appoint a bargaining 
representative to represent the employee:

(a) in bargaining for the agreement; and

(b) in a matter before the FWC that relates to bargaining for the agreement.

Content of notice—default bargaining representative

(3) If subsection (4) does not apply, the notice must explain that:

(a) if the employee is a member of an employee organisation that is 
entitled to represent the industrial interests of the employee in relation to work 
that will be performed under the agreement; and

(b) the employee does not appoint another person as his or her bargaining 
representative for the agreement;

the organisation will be the bargaining representative of the employee.








[2018] FWC 4638

59

Content of notice—bargaining representative if a low paid authorisation is in 
operation

(4) If a low paid authorisation in relation to the agreement that specifies the 
employer is in operation, the notice must explain the effect of paragraph 176(1)(b) and 
subsection 176(2) (which deal with bargaining representatives for such agreements).

Content of notice—copy of instrument of appointment to be given

(5) The notice must explain the effect of paragraph 178(2)(a) (which deals with 
giving a copy of an instrument of appointment of a bargaining representative to an 
employee’s employer).’

[160] Sections 180-181 set out the mandatory preapproval steps for the approval of an 

agreement. The sections read:

‘180 Employees must be given a copy of a proposed enterprise agreement etc.
Pre-approval requirements

(1) Before an employer requests under subsection 181(1) that employees approve a 
proposed enterprise agreement by voting for the agreement, the employer must comply 
with the requirements set out in this section.

Employees must be given copy of the agreement etc.

(2) The employer must take all reasonable steps to ensure that:
(a) during the access period for the agreement, the employees (the relevant 
employees ) employed at the time who will be covered by the agreement are 
given a copy of the following materials:

(i) the written text of the agreement;

(ii) any other material incorporated by reference in the agreement; or

(b) the relevant employees have access, throughout the access period for the 
agreement, to a copy of those materials.

(3) The employer must take all reasonable steps to notify the relevant employees of 
the following by the start of the access period for the agreement:

(a) the time and place at which the vote will occur;

(b) the voting method that will be used.

(4) The access period for a proposed enterprise agreement is the 7-day period ending 
immediately before the start of the voting process referred to in subsection 181(1).
Employees must be given copy of disclosure documents etc.








[2018] FWC 4638

60

(4A) If an organisation gives the employer a document under section 179 by the end 
of the fourth day of the access period for the agreement, the employer must take all 
reasonable steps to ensure that the relevant employees:

(a) are given a copy of the document as soon as practicable after it was given 
to the employer; or

(b) are given access to a copy of the document as soon as practicable after it 
was given to the employer and have access to that copy throughout the 
remainder of the access period for the agreement.

Note:         This subsection is a civil remedy provision (see Part 4-1).

(4B) If the employer is required to prepare a document under section 179A, the 
employer must take all reasonable steps to ensure that the relevant employees:

(a) are given a copy of the document by the end of the fourth day of the access 
period for the agreement; or

(b) are given access to a copy of the document by the end of that fourth day 
and have access to that copy throughout the remainder of the access period for 
the agreement.

Note:         This subsection is a civil remedy provision (see Part 4-1).

(4C) The employer must not knowingly or recklessly make a false or misleading 
representation in the document that the relevant employees are given a copy of or 
access to under subsection (4B).
Note: This subsection is a civil remedy provision (see Part 4-1).

Terms of the agreement must be explained to employees etc.

(5) The employer must take all reasonable steps to ensure that:

(a) the terms of the agreement, and the effect of those terms, are explained to 
the relevant employees; and

(b) the explanation is provided in an appropriate manner taking into account 
the particular circumstances and needs of the relevant employees.

(6) Without limiting paragraph (5)(b), the following are examples of the kinds of 
employees whose circumstances and needs are to be taken into account for the 
purposes of complying with that paragraph:

(a) employees from culturally and linguistically diverse backgrounds;

(b) young employees;

(c) employees who did not have a bargaining representative for the agreement.’








[2018] FWC 4638

61

‘181 Employers may request employees to approve a proposed enterprise 
agreement

(1) An employer that will be covered by a proposed enterprise agreement may 
request the employees employed at the time who will be covered by the agreement to 
approve the agreement by voting for it.

(2) The request must not be made until at least 21 days after the day on which the 
last notice under subsection 173(1) (which deals with giving notice of employee 
representational rights) in relation to the agreement is given.

(3) Without limiting subsection (1), the employer may request that the employees 
vote by ballot or by an electronic method.’

[161] The 6 June 2017 NERR stated that Noorton Pty Ltd was the employer and had the 

authority to issue the last NERR. The Union went to considerable effort to trace the two and a 

half year history of the negotiations for the Agreement with Ms Doust closely cross-

examining Mr Ford in order to establish that the Union and the employees had been misled as 

to the employer’s true identity. Putting aside the Union brought no evidence from any 

employees, in my view, the only relevant identification of the employer for the purposes of 

negotiating the Agreement and making the application for approving the Agreement, is the 

last NERR issued on 6 June 2017 (and the F17). 

[162] It is common, during protracted agreement negotiations, for more than one, (and 

sometimes multiple), NERRs to be issued. The Act makes plain, by s 181(2), that the only 

relevant NERR is the last notice made under s 173(1). Having been issued 21 days before the 

request for a ballot can be made, it follows that earlier requests for a ballot may have been 

made, or an unsuccessful ballot may have taken place, but they are not relevant. Such a 

history does not impugn the last NERR (assuming all other preapproval steps are complied 

with). However, before a ballot, the only non-compliance issue, resulting in a rejection of the 

application on this issue, is if the last NERR was issued less than 21 days before the ballot 

had been requested. That is not the case here. 

[163] The fact there may be no letter of appointment or contracts of employment with the 

employees is not a statutory test as to issuance of the last NERR. It will be a question of fact 

as to whether the employees were employed by the named employer as stated in the NERR. It 

is Noorton Pty Ltd - of that there can be no legal doubt. Of course, whether some of the 








[2018] FWC 4638

62

employees of Noorton Pty Ltd were not eligible to cast a vote in the ballot, or will not be 

covered by the Agreement, are completely different propositions which I shall come to 

shortly. 

[164] In any event, having been involved in this matter for some time, I have no doubt at all 

that the use of the brand name Manly Fast Ferry is commonly understood and accepted by the 

Union and the employees. It is a name well known to customers and the industry as the entity 

supplying ferry and tourism services in Sydney Harbour. Moreover, the employees would 

have been in no doubt as to their legal employer being Noorton Pty Ltd. Their payslips and 

Group Certificates over a number of years make this abundantly clear. In addition, the 

following facts are relevant to dispel any claim of confusion or uncertainty as to the legal 

employer of the employees:

(a) Noorton Pty Ltd is referred to in one of the old Workplace Agreements which have 

been in place for many years, and continue to remain in force. That agreement covers 

whale watching activities.

(b) The use of the name ‘Manly Fast Ferry’ in the title of the Agreement is irrelevant to 

the legal name of the employer of the employees to be covered by the Agreement. 

There is certainly no requirement for the name of the employer to feature in the title of 

the Agreement (as thousands of approved agreements obviously demonstrate);

(c) The evidence that Mr Ford was confused as to his use of the name, Manly Fast Ferry 

or that his evidence was said by the Union to lack credibility, is not the point; although  

I accept Ms Doust’s submission that it may be relevant to section 188(c) of the Act 

(the ‘no other reasonable grounds’ issue);

(d) At all times, the Union and the employees knew Mr Ford was the person who had 

authority to negotiate on behalf of Noorton as a bargaining representative. In any 

event, Mr Ford was an officer of Noorton and at the same time an officer of Manly 

Fast Ferry, a wholly owned subsidiary of Noorton Pty Ltd. There is no evidence the 

Union, or any employee had ever challenged Mr Ford’s standing or authority to 

negotiate the terms of the Agreement.

[165] Accordingly, I am satisfied that the NERR issued by Noorton Pty Ltd on 6 June 2017:

(a) contains the prescribed content as set out in the Regulations;

(b) does not contain any other content; and








[2018] FWC 4638

63

(c) is in the form prescribed by the Regulations.

[166] There being no other matter which might impugn the validity of the 6 June 2017 

NERR, I am satisfied that ss 172, 173, 181 and 188 have been complied with. It follows that it 

is unnecessary to consider Mr McCarthy’s alternative submission that this matter should be 

adjourned pending passage of the Fair Work Amendment (Abolition of 4 yearly Reviews of 

Modern Awards and Other Measures) Bill 2017; see: para [154]. However, I would note that 

this is a rather bizarre submissions given that:

(a) there appears to be no urgency from any quarter to have the Bill brought before the 
Senate; and

(b) it would be unlikely that any amendment to the Act would have retrospective 
operation. 

Issue 2 - Whether the applicant Noorton Pty Ltd complied with all of the statutory pre-

approval steps for the making of an enterprise agreement (the ‘genuinely agreed’ issue)

[167] Sections 186, 187 and 188 set out the requirements which must be met before an 

agreement can be approved; notably, the requirements that the Commission must be satisfied 

the employees covered by the agreement ‘genuinely agreed’ to it. The sections are as follows:

‘186 When the FWC must approve an enterprise agreement—general 
requirements

Basic rule

(1) If an application for the approval of an enterprise agreement is made under 
section 185, the FWC must approve the agreement under this section if the 
requirements set out in this section and section 187 are met.

Note: The FWC may approve an enterprise agreement under this section with 
undertakings (see section 190).

Requirements relating to the safety net etc.

(2) The FWC must be satisfied that:

(a) if the agreement is not a greenfields agreement—the agreement has 
been genuinely agreed to by the employees covered by the agreement; and

(b) if the agreement is a multi enterprise agreement:

(i) the agreement has been genuinely agreed to by each employer 
covered by the agreement; and








[2018] FWC 4638

64

(ii) no person coerced, or threatened to coerce, any of the 
employers to make the agreement; and

(c) the terms of the agreement do not contravene section 55 (which deals 
with the interaction between the National Employment Standards and 
enterprise agreements etc.); and

(d) the agreement passes the better off overall test.

Note 1:For when an enterprise agreement has been genuinely agreed to by employees, 
see section 188.

Note 2:The FWC may approve an enterprise agreement that does not pass the better 
off overall test if approval would not be contrary to the public interest (see section 
189).

Note 3:The terms of an enterprise agreement may supplement the National 
Employment Standards (see paragraph 55(4)(b)).
Requirement that the group of employees covered by the agreement is fairly chosen

(3) The FWC must be satisfied that the group of employees covered by the 
agreement was fairly chosen.

(3A) If the agreement does not cover all of the employees of the employer or 
employers covered by the agreement, the FWC must, in deciding whether the group of 
employees covered was fairly chosen, take into account whether the group is 
geographically, operationally or organisationally distinct.

Requirement that there be no unlawful terms

(4) The FWC must be satisfied that the agreement does not include any unlawful 
terms (see Subdivision D of this Division).
Requirement that there be no designated outworker terms

(4A) The FWC must be satisfied that the agreement does not include any designated 
outworker terms.

Requirement for a nominal expiry date etc.

(5) The FWC must be satisfied that:
(a) the agreement specifies a date as its nominal expiry date; and

(b) the date will not be more than 4 years after the day on which the FWC 
approves the agreement.

Requirement for a term about settling disputes

(6) The FWC must be satisfied that the agreement includes a term:








[2018] FWC 4638

65

(a) that provides a procedure that requires or allows the FWC, or another 
person who is independent of the employers, employees or employee 
organisations covered by the agreement, to settle disputes:

(i) about any matters arising under the agreement; and

(ii) in relation to the National Employment Standards; and

(b) that allows for the representation of employees covered by the 
agreement for the purposes of that procedure.

Note 1:The FWC or a person must not settle a dispute about whether an employer had 
reasonable business grounds under subsection 65(5) or 76(4) (see subsections 739(2) 
and 740(2)).

Note 2:However, this does not prevent the FWC from dealing with a dispute relating 
to a term of an enterprise agreement that has the same (or substantially the same) 
effect as subsection 65(5) or 76(4)’

‘187 When the FWC must approve an enterprise agreement—additional 
requirements

Additional requirements

(1) This section sets out additional requirements that must be met before the FWC 
approves an enterprise agreement under section 186.

Requirement that approval not be inconsistent with good faith bargaining etc.

(2) The FWC must be satisfied that approving the agreement would not be 
inconsistent with or undermine good faith bargaining by one or more bargaining 
representatives for a proposed enterprise agreement, or an enterprise agreement, in 
relation to which a scope order is in operation.

Requirement relating to notice of variation of agreement

(3) If a bargaining representative is required to vary the agreement as referred to in 
subsection 184(2), the FWC must be satisfied that the bargaining representative has 
complied with that subsection and subsection 184(3) (which deals with giving notice 
of the variation).

Requirements relating to particular kinds of employees

(4) The FWC must be satisfied as referred to in any provisions of Subdivision E of 
this Division that apply in relation to the agreement.
Note: Subdivision E of this Division deals with approval requirements relating to 
particular kinds of employees.

Requirements relating to greenfields agreements








[2018] FWC 4638

66

(5) If the agreement is a greenfields agreement, the FWC must be satisfied that:

(a) the relevant employee organisations that will be covered by the 
agreement are (taken as a group) entitled to represent the industrial interests of 
a majority of the employees who will be covered by the agreement, in relation 
to work to be performed under the agreement; and

(b) it is in the public interest to approve the agreement.’

‘188 When employees have genuinely agreed to an enterprise agreement

An enterprise agreement has been genuinely agreed to by the employees covered by 
the agreement if the FWC is satisfied that:

(a) the employer, or each of the employers, covered by the agreement 
complied with the following provisions in relation to the agreement:

(i) subsections 180(2), (3) and (5) (which deal with pre approval 
steps);

(ii) subsection 181(2) (which requires that employees not be 
requested to approve an enterprise agreement until 21 days after the last 
notice of employee representational rights is given); and

(b) the agreement was made in accordance with whichever of subsection 
182(1) or (2) applies (those subsections deal with the making of different kinds 
of enterprise agreements by employee vote); and

(c) there are no other reasonable grounds for believing that the agreement 
has not been genuinely agreed to by the employees.’

[168] The Union submitted that the Agreement was not ‘genuinely agreed’ (s 188(a)(ii))) 

because the 6 June 2017 NERR was not given under s 173(1) as it was not given after the 

notification time (a 173(2)) because in the 14 days prior to 6 June, Noorton had not agreed to 

bargain, nor had it initiated bargaining (s 173(3)). 

[169] In my view, there is a pall of unreality about the Union’s submission in this respect, 

given the state of negotiations preceding the 6 June 2017 NERR. On 29 May 2017, the Union 

declared bargaining was over. In response, the applicant then sought to bargain directly with 

its employees, namely two employees (one of whom Mr Ford understood to be not only a 

representative of the employees, but also an MUA delegate who had attended many of the 

negotiations over the previous two years). These communications were by SMS text messages 

as follows:








[2018] FWC 4638

67

Mr Ford – ‘Ok, they have declared a full scale attack on mff as expected it was not just 
the casual Sunday rate they want hcf rates across the board. Looks like we have gone 
back 2 years after all the work the crew have done. It is not time for mff to standup as 
a group and talk with management. 

employee – what do they mean by a full scale attack? Industrial action? I will have a 
talk with crew over the next day or so to gather their thoughts

Mr Ford – Yes we should sit with yourself and Nic and discuss where we want it all to 
go. Will call tomorrow. 

employee – Ok no worries

Mr Ford – Hi beau, have you got 10min to talk today? 

Mr Ford – Yeah all good

[170] Whatever might be said about the motivation for these communications, the fact is 

they demonstrate an intent to initiate bargaining with the relevant employees or that the 

applicant had agreed to bargain in a different context. In my view, there is nothing in s 173 

which prescribes, or limits the manner in which the employer may agree to bargain or initiate 

bargaining. The words should be given their plain, ordinary meaning. This observation is 

consistent with the definition of ‘notification time’ in Maritime Union of Australia v Maersk 

Crewing Australia Pty Ltd [2016] FWCFB 1894. There the Full Bench said at [34]-[35]:

‘[34] Contrary to Maersk’s contention, s.437(2A) defines the commencement of 
bargaining by reference to a ‘notification time’ within the meaning of s.173(2), not by 
the giving of a NERR. As observed by Hatcher VP in Transport Workers' Union of 
Australia v Hunter Operations Pty Ltd  (‘Hunter’), the definition of ‘notification time’ 
in s.173(2)(a), ‘indicates that an employer’s agreement to bargain is a single event 
which happens at a particular point in time’. Hence, s.437(2A) refers to a point in time 
– the ‘notification time’ – not what the FW Act prescribes must be done by an 
employer at that point in time (ie issue a NERR within 14 days of the ‘notification 
time’: ss 173(1) and (3)).

[35] As Hatcher VP observed in Hunter , ‘an employer may agree to bargain expressly 
in writing or orally, or … an employer may be inferred to have agreed to bargain 
through its conduct (such as by commencing to actually engage in bargaining in 
relation to a proposed enterprise agreement)’. The issuing of an NERR may evidence 
that the employer has agreed to bargain, but the requirement to issue the NERR arises 
once the employer has agreed to bargain or has initiated bargaining – it is not a 
prerequisite for bargaining. Whether an employer has agreed to bargain or has initiated 
bargaining in relation to a proposed enterprise agreement is a question of fact. An 
NERR is an indicator of employer intention – but not necessarily the determining 
factor.’








[2018] FWC 4638

68

[171] Further support for these propositions is demonstrated by the not uncommon 

circumstances where bargaining has already commenced and then maybe suspended for many 

months and later sought to be reactivated. In such cases, it is not unusual for a new 

notification time to be advised and a new NERR issued no later than 14 days later. I also 

accept Mr McCarthy’s submission that the fact the applicant had agreed to bargain or initiated 

bargaining were also the communications it had with the Union, as the default bargaining 

representative, as a result of the issuance of the NERR on 6 June 2017 and the steps taken by 

the employer to put its ‘best and final’ offer and then proceed to the vote on 11 July 2017. 

Issue 3 - Whether the correct cohort of voters were employed at the time of the vote for 

the approval of the Agreement and/or are to be covered by the Agreement (the ‘vote’ 

issue). 

[172] Section 182 defines when an agreement is made and reads:

“182 When an enterprise agreement is made

Single enterprise agreement that is not a greenfields agreement

(1) If the employees of the employer, or each employer, that will be covered by a 
proposed single enterprise agreement that is not a greenfields agreement have been 
asked to approve the agreement under subsection 181(1), the agreement is made when 
a majority of those employees who cast a valid vote approve the agreement.
Multi enterprise agreement that is not a greenfields agreement

(2) If:

(a) a proposed enterprise agreement is a multi enterprise agreement; and

(b) the employees of each of the employers that will be covered by the 
agreement have been asked to approve the agreement under subsection 181(1); 
and

(c) those employees have voted on whether or not to approve the 
agreement; and

(d) a majority of the employees of at least one of those employers who cast 
a valid vote have approved the agreement;








[2018] FWC 4638

69

the agreement is made immediately after the end of the voting process referred to in 
subsection 181(1).

[173] I agree with Union that in order for the Commission to be satisfied an agreement has 

been ‘genuinely agreed’, compliance with s 181(2) is necessary and in the present context, 

whether: 

(a) the correct cohort of employees have been requested to vote;

(b) the votes that were cast were votes to approve the Agreement; and

(c) if they were, whether such votes constituted a majority.

[174] Section 182 must be read with section 181(1), which identifies two tests as to the 

eligibility of employees to vote for an agreement. These are:

 The employees must be employed at the time of the vote: and

 The employees who vote will be covered by the agreement. 

[175] Ms Doust relied on the decision in Swinburne. In my view, the important paragraphs 

relevant to this case, are found at paras [30]-[32] which read:

‘30. I have had the benefit of reading a draft of the reasons of Jessup J and agree with 
the orders he proposes but have a different view about the Commission’s construction 
of the relevant provision.

31. The Union contended in this appeal that the Commission’s decision was affected 
by five jurisdictional errors. The first error was said to be the adoption of an erroneous 
construction of the words “employees” and “employees employed at the time” in s 
181(1) of the Fair Work Act 2009 (Cth) (“the Fair Work Act”). Section 181(1) permits 
an employer that will be covered by a proposed enterprise agreement to request the 
employees to approve the agreement by vote. The class of employees whose approval 
may be sought by vote is described in the section as “the employees employed at the 
time who will be covered by the agreement”. The section provides:

An employer that will be covered by a proposed enterprise agreement may 
request the employees employed at the time who will be covered by the 
agreement to approve the agreement by voting for it.

The persons who were requested by Swinburne to vote included sessional teachers 
employed in the previous year. The Union contended that the sessional teachers 
employed in the previous year did not fall within the statutory class of employees 
eligible to vote because they were not “employees employed at the time”.

32. The construction of the words “employees employed at the time who will be 
covered by the agreement” which was adopted by Swinburne, and accepted by the 








[2018] FWC 4638

70

Commission, was one that included persons who might not actually be engaged in 
employment at the time of the vote but who were argued to come within the broader 
meaning of employees, namely as persons who were “usually employed” at that time. 
That construction was not, in my view, erroneous. The word “employees” in s 181 has 
its ordinary meaning extended by s 15 of the Fair Work Act to a person who is usually 
such an employee. Section 15 provides:

15 Ordinary meanings of employee and employer
(1) A reference in this Act to an employee with its ordinary meaning:

(a) includes a reference to a person who is usually such an employee; and
(b) does not include a person on a vocational placement.

Note: Subsections 30E(1) and 30P(1) extend the meaning of employee in 
relation to a referring State.

(2) A reference in this Act to an employer with its ordinary meaning includes a 
reference to a person who is usually such an employer.

Note: Subsections 30E(2) and 30P(2) extend the meaning of employer in 
relation to a referring State.

The express inclusion of a person who is “usually” an employee into the ordinary 
meaning of the word “employee” extends the class of persons treated as employees. 
The class of persons treated as employees is thus made to include those, to adopt the 
words in Re National Wine Centre Certified Agreement (PR910912, AIRC, Adelaide, 
8 November 2011) at [40], where there is “a level of regularity and connection 
between [the] employee and the employer”. The words “employed at the time”, which 
follow the word “employees” in s 181(1), do not undo the extension of the category of 
employees effected by s 15 but, rather, ensure that there is a temporal connection 
between the time of voting and the circumstances required to exist to come within the 
extended meaning given to “employees”. Thus a person will be entitled to vote under s 
181(1) if that person is (at the time of voting) an employee in the extended sense 
effected by s 15, namely, that the person is “usually” such an employee at the time 
albeit not an employee in the ordinary (unextended) meaning.’

[176] The difficulty of identifying the valid cohort of employees who can vote for an 

agreement has been commented on in a number of significant cases. In Construction, 

Forestry, Mining and Energy Unio v John Holland Pty Ltd [2015] FCAFC 16, the Full Court 

of the Federal Court Buchanan J (with whom Besanko and Barker JJ agreed), said at [34]-

[41]: 

‘34. One question which has troubled me is whether it is correct to accept, as appears 
to have been the case, that the reference in s 186(3) to “the group of employees 
covered by the agreement” is a reference to the whole class of employees to whom the 
agreement might in future apply, rather than the group of employees which actually 
voted on whether to make the agreement.








[2018] FWC 4638

71

35. It may at once be observed that the second-mentioned group is fixed in time and 
known, whereas the wider, potential group is not fixed at any point in time and may be 
very difficult to evaluate or assess, depending on the breadth of coverage specified by 
the terms of the agreement and, perhaps, the nature and complexity of the employer’s 
business.

36. The virtual impossibility of knowing with certainty the composition of the whole 
group within the potential coverage of the agreement, compared with the complete
certainty about those to whom a vote is in fact offered, makes the choice of the first 
alternative construction an attractive one unless such a construction is excluded by the 
terms of the statute. However, that is not the construction which has so far been 
accepted and there appear to be sound reasons for preferring the other, wider 
construction.

37. First, the traditional concepts of application and coverage, which are now reflected 
in ss 52 and 53 of the FW Act, recognise the difference between actual application (i.e. 
to then present employees) and potential coverage (extending to the whole class of 
employees at any point in time). The procedural steps required for making an 
agreement with employees focus, of necessity, on the need for majority support by 
those present employees who will be covered by the agreement but once an agreement 
is made the matters which require consideration by the FWC in relation to whether an 
agreement must be approved are not necessarily confined in the same way.

38. Secondly, there are other indications in the FW Act that a distinction must be made 
between the group of present employees who will be covered by an agreement and the 
wider group who will be covered if the agreement is made. Indications of that sort may 
be seen in the procedures to assist “good faith bargaining”, whereby a bargaining 
representative (which may be a union – s 176(1)(b)) may apply to the FWC for a 
“majority support determination” or a “scope order”. In either case, the FWC must 
address the question (similarly to s 186(3) and (3A)) whether “the group of employees 
who will be covered by the agreement was fairly chosen” and whether the group is 
geographically, operationally or organisationally distinct (s 237(2)(c), (3A); s 
238(4A)). In context, it appears clear that this is a wider group (corresponding to 
potential coverage) than the group of present employees who wish to bargain or whose 
immediate interests are those being represented.

39. Thirdly, and perhaps most decisively, as counsel for the respondent pointed out in 
the present case, s 186(3) and (3A) apply to both greenfields agreements and 
agreements made with employees. They would have no context or operation in 
relation to a greenfields agreement unless the wider view was taken.

40. That wider view is the one which has been taken by the FWC, and it was accepted 
by all parties to the present appeal.

41. One reason I have spent some time examining the correctness of the common 
assumption about this issue is that upon the view that the group to be considered under 
s 186(3) and (3A) reflects potential (not present) coverage it will often (perhaps 
usually) be impossible to state with much precision or certainty what that coverage 
might entail in a practical sense in the years to come, or how the group might at any 








[2018] FWC 4638

72

particular point in time be composed. However, that seems to me to be the 
consequence of the legislative scheme. The evaluation which the legislature has 
committed to the FWC must therefore be carried out with that consequence being 
understood and accepted. That is relevant to an examination of some of the findings of 
the Full Bench.’

[177] The High Court in ALDI Foods Pty Limited v Shop, Distributive & Allied Employees 

Association [2017] HCA 53 also addressed the words ‘who will be covered’ by the 

agreement in the present context. At paras [76]-[77] the High Court said:

‘76. The SDA's argument, and the reasoning of the majority of the Full Court, cannot 
stand with the plain and ordinary meaning of s 172(2) and (4) of the Act. Those 
provisions, as mentioned, contemplate the making of non-greenfields agreements with 
persons already employed. In addition, while s 186 operates on the assumption that 
there are employees covered by the agreement at the time the application for approval 
is made, it does not follow that the agreement must apply to them in the sense of 
operating to fix their rights and obligations in the work actually being performed by 
them at that time.

77. The question of coverage that arises when the Commission asks whether the 
agreement has been genuinely agreed to for the purposes of s 186(2)(a) is not whether 
the employees voting for the agreement are actually employed under its terms, but 
rather whether the agreement covers all employees who may in future have the terms 
and conditions of their jobs regulated by it. At the stage of considering whether an 
enterprise agreement is available to be made under s 172 of the Act, ie when no 
agreement has as yet been made, it is a natural and ordinary use of language to speak 
of the employees whose jobs are within the scope of the proposed agreement as 
employees who "will be covered" by the agreement. At the stage of considering 
whether an enterprise agreement, which has been made (by virtue of s 182(1)), should 
be approved pursuant to s 186(2)(a), it is a natural and ordinary use of language to 
speak of the employees, whose jobs are described by the terms of the agreement which 
has been made, as employees who "are covered" by the agreement.’

[178] A more intensive consideration arises under s 180(5) of the Act as to whether the 

Agreement was ‘genuinely agreed’ by the employees, as a result of the judgement of the Full 

Court of the Federal Court in One Key Workforce Pty Ltd v Construction, Forestry, Mining 

and Energy Union [2018] FCAFC 77 (‘One Key’). This judgement was published on 25 May 

2018, four weeks after the Commission had reserved its decision in this matter. The Full 

Court concluded that:

 In order to reach the requisite state of satisfaction that s 180(5) had been 

complied with, the Commission was required to consider the content of the 

explanation and the terms in which it was conveyed, having regard to all the 








[2018] FWC 4638

73

circumstances and needs of the employees and the nature of the changes made 

by the Agreement.

 The absence of that information meant that the Commission was not in a 

position to form the requisite state of satisfaction. 

 Without knowing the content of the explanation, it was not open to the 

Commission to be satisfied that all reasonable steps had been taken to ensure 

that the terms and their effect had been explained to the employees who voted 

on the Agreement or that they had genuinely agreed to the Agreement.

[179] I did not invite further submissions from the parties arising from ‘One Key’, because I 

was satisfied that the applicant had taken reasonable steps to ensure the terms of the 

Agreement, and their effect, had been explained to the employees consistent with One Key. 

That finding is manifest by the long history of negotiations, the active involvement of the 

Union itself, in explaining the effect of the Agreement’s terms, and more specifically the 

detailed 17 page Summary and Explanation of Changes (Annexure 6 to the F17) sent to all

relevant employees. I note also a paid Employee Information Session for all employees on 2 

July 2017. In my view, these were all reasonable steps taken by the applicant, which satisfy s 

180(5) of the Act and are consonant the One Key judgement. 

[180] As will be evident from Ms Doust’s submissions, the Union maintains that there is 

doubt about these two preconditions, given the entire workforce are Casual employees; there 

is a substantial turnover of labour; and more Casual employees were employed before the 

vote. Reliance was had on the generally well established view that each casual engagement is 

a separate contract of employment; see: Shortland v Smiths Snackfoods [2010] FWAFB 5709 

at [10]. This is not the case here. It is clear the Casual employees were engaged by the 

applicant on an ongoing basis with regular and systematic employment. The evidence is that 

77.5% employees who voted, had worked for the business for at least six months. All 49 

employees who voted, had been working for Noorton in the previous financial year; (see: 

Group Certificates).

[181] It is obvious the employer considers the employees are regular and systematic Casual 

employees. The employees are all engaged according to rosters, and employees make known 

to the employer (and may seek approval before) when making a request to have time off 








[2018] FWC 4638

74

without pay. There is evidence the employees, after any period of extended time off, are re-

engaged upon their return.

[182] In my view, Swinburne does not assist the Union’s arguments. The evidence 

establishes that employees are not just ‘usually employed’ - they are employees who 

comfortably fit within the expression ‘employed at the time’.

[183] Further, I reject the Union’s claim that there has been a substantial turnover of labour 

and that new Casual employees were engaged immediately before the vote. The evidence 

does not support either claim. I hazard a guess that if a casual Union member was dismissed, 

the Union would strongly assert they are covered by the unfair dismissal provisions under the 

Act and are regular and systematic employees. Mr Ford’s position is that is exactly how he 

treats the workforce. 

[184] To support its submissions, the Union asserted that nine of the 49 employees who 

voted in the ballot, were ineligible to do so. It undertook an examination of the rosters and 

work performed by each employee to substantiate its assertion. I accept that of the nine 

employees:

(a) 5 of the employees were absent on a period of leave at the time of the vote. They were 

employees No. 2, 6, 11, 16 and 38. 

(b) All 5 employees on leave were expected to resume work and all 5 employees did 

resume work for the Company after their period of leave. 

(c) Employee No. 6 – who was on leave – did not vote. 

(d) Employee No. 12 – is a Ticket Seller who also performs shifts as a Deckhand and was 

therefore entitled to vote. 

(e) Employee No. 20 worked on the day of the Vote as a Deckhand and was entitled to 

vote. 

(f) Employee No. 33 worked as a Deckhand on the day of the Vote and was entitled to 

vote. 

(g) Employee No. 37 is a Ticket Seller who also performs shifts as a Deckhand and was 

therefore entitled to vote. 








[2018] FWC 4638

75

[185] In addition, given the factual employment profile of the nine employees said to be 

ineligible to vote, I accept that these employees were employed at the time of the vote, 

(irrespective of whether they were rostered off on the days of the vote), and meet the second 

precondition of being employees who are to be covered by the Agreement.

[186] Further, I do not accept the Union’s claim that the question posed by the ballot was not 

specific to the Agreement, but meant a non-specific agreement and was therefore inconsistent 

with s 182. By the use of the article ‘a’, as distinct to ‘the’, is a difference without a 

distinction. The Agreement the GPHs and Hosts were asked to approve was the one that had 

been distributed to them as the ‘last and final offer’. There was no other Agreement relevant 

in any practical or statutory sense. Moreover, there could have been no confusion as to what 

the employees were voting on. No evidence was adduced from any employee that they were 

confused, or did not understand what Agreement they were being asked to approve. 

Issue 4 - Whether there were other reasonable grounds for believing the Agreement had 

not been genuinely agreed by the employees (s 188(c)) (the ‘no other reasonable 

grounds’ issue).

[187] The Union set out its concerns going to ‘other reasonable grounds’ as follows:

(a) The ongoing dispute about the applicable reference instrument;

(b) the misrepresentation by the applicant as to the true identity of the employer of the 

relevant employees;

(c) misrepresentation of the voting process; and

(d) new employees were engaged before the vote and other employees were not employed 

at the time of the vote. 

[188] Ms Doust submitted that the Commission would have concerns with to the 

‘authenticity’ and ‘moral authority’ of the Agreement; see: Construction, Forestry, Mining 

and Energy Union v The Australian Industrial Relations Commission [2001] HCA 16; 203 

CLR 645 (‘CFMEU v AIRC’). It will be seen that I have dealt with the above matters 

elsewhere in this decision. Having regard to the protracted history of this matter, the 

comprehensive and detailed material provided by the applicant and its intention to comply 

with all statutory obligations, I cannot identify any behaviour or conduct which would lead 

me to have concerns the employees did not ‘genuinely agree’ to the Agreement. More 








[2018] FWC 4638

76

specifically, the ongoing dispute as to the appropriate Modern Award reference instrument 

has been an open disagreement from the outset, which was never going to be resolved by the 

parties themselves. Mere disagreement does not amount to egregious or unreasonable 

behaviour. The facts and circumstances go nowhere close to those identified in CFMEU v 

AIRC or Toys-R-Us (1995) 37 AILR 3068 Print L9066.

Issue 5 - Whether the Ports Award is the only Award which would otherwise cover the 

work performed by employees of Noorton Pty Ltd (the ‘single Award’ issue).

[189] There is no doubt that an employer’s enterprise can be covered by one or more 

Modern Awards. For example, a factory in which the employer has manufacturing, transport 

and clerical functions and where employees do not move outside their respective award 

coverage, is covered by the respective Modern Awards. Less common, but not rare, are 

enterprises which, for seasonal or operational reasons, employees may move between the 

coverage of two or more Modern Awards; for example a farm on which produce is grown and 

harvested and then stored and distributed. Employees are involved in the horticultural 

industry and the storage/warehousing industries. In the maritime industry, there have been 

disputes concerning whether employees are engaged under the Seagoing Industry Award or 

the Ports, Harbour and Enclosed Water Award. Closer to home, it is common ground that the 

majority of work to be covered by this Agreement (although the exact percentage is 

disagreed) would fall within ‘ferry’ work and be otherwise covered by the Ports Award. The 

Union insists that this means the Ports Award is the only relevant instrument for the purposes 

of the BOOT. Where there are disputes about which Modern Award reference instrument 

applies for the purposes of the BOOT, it is invariably the case that the rates and conditions 

under a proposed agreement may not meet one reference instrument, but will meet another.

But that is not the situation in this case. As I understand the evidence, the employees will be 

‘better off’ whether the test is against the Marine Tourism Award or the Ports Award, (save 

for whale watching, which no party claims is not tourism work).

[190] In other words, the Union’s claim as to the Ports Award being the only Award to be 

applied for the purposes of the BOOT, is an arid argument. It makes no difference as to 

whether the Agreement passes the BOOT. In any event, there is no statutory prohibition on 

the Commission finding that two Modern Awards are the relevant reference instruments for 

the purposes of the BOOT. I am satisfied that this is the position in respect to operations of 








[2018] FWC 4638

77

Noorton's on-board vessel operations. I shall return to the Union’s BOOT submissions 

shortly.

Issue 6 - Whether the Agreement satisfies the Better Off Overall Test (the ‘BOOT 

issue’).

[191] A critical statutory provision in this case concerns whether the Agreement passes the 

BOOT. The relevant provisions are set out in section 193 and read:

“193 Passing the better off overall test

When a non greenfields agreement passes the better off overall test

(1) An enterprise agreement that is not a greenfields agreement passes the better 
off overall test under this section if the FWC is satisfied, as at the test time, that each 
award covered employee, and each prospective award covered employee, for the 
agreement would be better off overall if the agreement applied to the employee than if 
the relevant modern award applied to the employee.

FWC must disregard individual flexibility arrangement

(2) If, under the flexibility term in the relevant modern award, an individual 
flexibility arrangement has been agreed to by an award covered employee and his or 
her employer, the FWC must disregard the individual flexibility arrangement for the 
purposes of determining whether the agreement passes the better off overall test.

When a greenfields agreement passes the better off overall test

(3) A greenfields agreement passes the better off overall test under this section if 
the FWC is satisfied, as at the test time, that each prospective award covered employee 
for the agreement would be better off overall if the agreement applied to the employee 
than if the relevant modern award applied to the employee.

Award covered employee

(4) An award covered employee for an enterprise agreement is an employee who:

(a) is covered by the agreement; and

(b) at the test time, is covered by a modern award (the relevant modern 
award) that:

(i) is in operation; and

(ii) covers the employee in relation to the work that he or she is to 
perform under the agreement; and








[2018] FWC 4638

78

(iii) covers his or her employer.

Prospective award covered employee

(5) A prospective award covered employee for an enterprise agreement is a person 
who, if he or she were an employee at the test time of an employer covered by the 
agreement:

(a) would be covered by the agreement; and

(b) would be covered by a modern award (the relevant modern award) that:

(i) is in operation; and

(ii) would cover the person in relation to the work that he or she 
would perform under the agreement; and

(iii) covers the employer.

Test time

(6) The test time is the time the application for approval of the agreement by the 
FWC was made under section 185.

FWC may assume employee better off overall in certain circumstances

(7) For the purposes of determining whether an enterprise agreement passes the 
better off overall test, if a class of employees to which a particular employee belongs 
would be better off if the agreement applied to that class than if the relevant modern 
award applied to that class, the FWC is entitled to assume, in the absence of evidence 
to the contrary, that the employee would be better off overall if the agreement applied 
to the employee.”

[192] The applicant has proposed a number of undertakings. The section dealing with 

undertakings and their effects are found at section 190 and 191 as follows:

‘190 FWC may approve an enterprise agreement with undertakings

Application of this section

(1) This section applies if:

(a) an application for the approval of an enterprise agreement has been made 
under subsection 182(4) or section 185; and

(b) the FWC has a concern that the agreement does not meet the requirements 
set out in sections 186 and 187.








[2018] FWC 4638

79

Approval of agreement with undertakings

(2) The FWC may approve the agreement under section 186 if the FWC is satisfied 
that an undertaking accepted by the FWC under subsection (3) of this section meets 
the concern.

Undertakings

(3) The FWC may only accept a written undertaking from one or more employers 
covered by the agreement if the FWC is satisfied that the effect of accepting the 
undertaking is not likely to:

(a) cause financial detriment to any employee covered by the agreement; or

(b) result in substantial changes to the agreement.

FWC must seek views of bargaining representatives

(4) The FWC must not accept an undertaking under subsection (3) unless the FWC 
has sought the views of each person who the FWC knows is a bargaining 
representative for the agreement.

Signature requirements

(5) The undertaking must meet any requirements relating to the signing of 
undertakings that are prescribed by the regulations.’

[193] As I have found that both Modern Awards are relevant reference instruments for the 

purposes of the BOOT, it needs to be emphasised that on the evidence before the 

Commission, the Agreement passes the BOOT, whichever Modern Award is used as the 

BOOT comparator. The Union’s submissions and its position in recent times is that the Ports 

Award is the only relevant instrument for the purposes of the BOOT. Whatever is the Union’s 

policy intent in respect to its insistence on this proposition, it is not relevant in this application 

in the BOOT context. In Beechworth, the Full Bench said at para [12]:

‘[12] The application of the better off overall test is not to be applied as a line by line 
analysis. Rather it is a global test requiring consideration of advantages and 
disadvantages to award covered employees and prospective award covered employees 
of an agreement’s application compared to the application of a relevant modern award. 
The application of the better off overall test therefore requires the identification of 
terms of an agreement which are more beneficial to the relevant employees when 
compared to the relevant modern award, the terms of an agreement which are less 
beneficial or detrimental when compared to the relevant modern award and then an 
overall assessment of whether each relevant employee would be better off under the 
agreement.’








[2018] FWC 4638

80

[194] Since the decision was reserved in this matter, a five member Full Bench has clarified 

a number of matters going to the application of the BOOT, particularly in respect to loaded 

rates agreements; see: Loaded Rates Agreements [2018] FWCFB 3610. A number of extracts 

from that decision are relevant for present purposes. At paragraphs 101, 106 and 111 the Full 

Bench said:

‘[101] In the case of anything other than small employers, it would be an exhaustive 
task to examine the circumstances of each individual employee to reach a state of 
satisfaction that the BOOT is passed. Section 193(7) substantially relieves the 
Commission of this burden by permitting it to assume, if a class of employees to 
which a particular employee belongs would be better off under the agreement than 
under the relevant modern award, that the employees would be better off overall in the 
absence of evidence to the contrary. Paragraph 818 of the Explanatory Memorandum 
to the Fair Work Bill 2008 contains some information as to how this provision was 
envisaged to operate as follows (emphasis added):

“818. Although the better off overall test requires FWA to be satisfied that each 
award covered employee and each prospective award covered employee will be 
better off overall, it is intended that FWA will generally be able to apply the 
better off overall test to classes of employees. In the context of the approval of 
enterprise agreements, the better off overall test does not require FWA to 
enquire into each employee's individual circumstances.
Illustrative example

Moss Hardware and Garden Supplies Pty Ltd makes an enterprise agreement to 
cover approximately 1800 employees working at its national chain of retail 
garden and hardware supplies outlets. All of these employees are 'award 
covered employees'. The seven classifications under the agreement broadly 
correlate to seven classifications under the relevant modern award. Because 
there will be many employees within each classification under the 
agreement and the agreement affects each employee within a classification in 
the same way, FWA could group employees together when assessing the 
employees against the better off overall test. It is intended that FWA could 
assess a hypothetical employee in each of the classifications under the
agreement against the relevant classification under the modern award.

If FWA were satisfied that the agreement affected each employee within the 
classification in the same way, and that the agreement passed the better off 
overall test for the hypothetical employee within the classification, FWA could 
be satisfied that the agreement passed the better off overall test for each award 
covered employee and prospective award covered employee within that 
classification.”

…








[2018] FWC 4638

81

[106] Where a substantial disparity of this nature exists between the current workforce 
as at test time and the class of prospective employees to whom the agreement might 
apply in the future, such that useful predictions as to future employment patterns may 
not readily be drawn from the way in which the existing workforce operates, the 
starting point must necessarily be an examination of the terms of the agreement in 
order to ascertain the nature and characteristics of the employment which the 
agreement provides for or permits. In accordance with established principles of the 
construction of agreements, the express provisions of an enterprise agreement may be 
approached on the basis that they were intended to establish binding obligations and 
have a practical field of operation and are not otiose. Thus, for example, if an 
enterprise agreement makes express provision for employees to be required to work 
ordinary hours on weekends, that provision cannot be ignored for BOOT purposes 
simply on the basis that the employer asserts that it does not currently, and does not 
intend to, make use of that provision. There may be objective evidence available 
which might support the conclusion that, notwithstanding an express provision of the 
agreement which apparently permits something to be done, it cannot in fact be done or 
is extremely unlikely to be done. For example, a provision in an agreement applying to 
a retail business allowing for ordinary hours of work to be performed at identified 
unsociable hours might reasonably be disregarded for BOOT purposes if applicable 
laws concerning retail trading hours prohibits work being done at the relevant times. 
However this is not likely to be a common circumstance.

[111] The submission made by the ARA that the requirement to assess the BOOT as at 
the “test time” (being the time at which the application for approval of the relevant 
agreement is made) means that only the operational circumstances of the employer 
(such as its work rosters) as at that time may be considered is also rejected. The 
requirement to assess the BOOT in respect of prospective as well as existing 
employees tells against the adoption of such an approach. Because, as the Full Court 
decision in John Holland made clear, it is open to make an enterprise agreement 
covering classifications, occupations and work locations that are not part of the 
employer’s operations as at test time, the requirement to assess the BOOT with respect 
to prospective employees who might fall within such future classifications, 
occupations and/or work locations must necessarily take into account how the 
agreement might in practice apply when such employees are engaged in the future. 
The application of the BOOT would be rendered nonsensical and ineffective with 
respect to such prospective employees if only the employer’s existing operations, 
which did not involve the use of prospective employees in the categories permitted by 
the agreement, could be taken into account. The statutory purpose of the requirement 
to assess the BOOT as at the test time is, we consider, to permit rates of pay and other 
conditions of employment in the agreement and the relevant award to be compared at a 
fixed point of time when the terms of both are known. Absent such a temporal 
requirement, the application of the BOOT would require speculation about future 
changes to the provisions of the award, in circumstances where the agreement to be 
assessed may also involve agreed changes such as increases in rates of pay at defined 
intervals, and would involve the impossible task of making multiple comparisons for 
the whole of the period in which the agreement remains in operation.’(citations 
removed)








[2018] FWC 4638

82

[195] The Full Bench set out 11 Principles which apply to the application of the BOOT to a 

loaded rates agreement. These are:

‘(1) The BOOT requires every existing and prospective award covered employee to be 
better off overall under the agreement for which approval is sought than under the 
relevant modern award. If any such employee is not better off overall, the agreement 
does not pass the BOOT.
(2) Section 193(7) permits the Commission to assume that if a class of employees to 
which a particular employee belongs would be better off under the agreement than 
under the relevant modern award, then the employee would be better off overall in the 
absence of evidence to the contrary. However the selection of class for the purpose of 
s 193(7) will only be of utility if the agreement affects the members of the class in the 
same way such that there is likely to be a common BOOT outcome. If the Commission 
is not satisfied on the evidence that an existing or prospective award covered 
employee is not better off overall, the Commission cannot approve the agreement, at 
least not without undertakings or in the confined circumstances set out in s 189.
(3) The application of the BOOT to a loaded rates agreement will, in order for a 
meaningful comparison to be made, require an examination of the practices and 
arrangements concerning the working of ordinary and overtime hours by existing and 
prospective employees that flow from the terms of the agreement. This will likely 
require classes to be identified based on common patterns of working hours, taking 
into account evening, weekend and/or overtime hours worked.
(4) The starting point for the assessment will necessarily be an examination of the 
terms of the agreement in order to ascertain the nature and characteristics of the 
employment for which the agreement provides or permits. For example if an enterprise 
agreement makes express provision for employees to be required to work ordinary 
hours on weekends, those provisions cannot be ignored for BOOT purposes simply 
because the employer asserts it does not currently utilise those working hours or roster 
patterns.
(5) In the case of existing employees, this may involve an examination of existing 
roster patterns worked by various classes of employees as at the test time. The use of 
sample rosters to compare remuneration produced by a loaded rates pay structure 
compared to the relevant modern award may be an effective method of doing this. 
There may be objective evidence that a particular pattern of working hours or roster 
pattern permitted by an enterprise agreement is not practicable, or cannot or is unlikely 
to be worked.
(6) In the case of prospective employees, the assessment will necessarily involve a 
degree of conjecture. In the case of an enterprise operating at a defined workplace or 
workplaces, the Commission may be in a position to make sensible predictions about 
the basis upon which prospective employees might be engaged based on the roster 
patterns worked by existing employees. However if a business is small and/or still at 
the development stage, or the agreement would cover a wider range of classifications, 
work locations and/or roster patterns that are not in existence as at the test time, useful 
predictions may not readily be drawn from the way in which the existing workforce 
operates. In that situation the assessment will require an examination of the terms of 
the agreement in order to ascertain the nature and characteristics of the employment 
which the agreement provides for or permits.
(7) If the information concerning patterns of working hours needed to assess whether a 
loaded rates agreement passes the BOOT is not contained in the employer’s Form F17 








[2018] FWC 4638

83

statutory declaration accompanying the approval application, it may be necessary for 
the Commission to request or require the production of such information.
(8) The BOOT involves the making of an overall assessment as to whether an 
employee would be better off under the agreement, which necessitates identification of 
the terms in the agreements which are more and less beneficial to the employee than 
under the relevant award.
(9) The overall assessment required will essentially be a mathematical one where the 
terms being compared relate directly to remuneration. The assessment will be more 
complex where the agreement contains some superior entitlements which are non-
monetary in nature, accessible at the employee’s option or which are contingent upon 
specified events occurring.
(10) In respect of non-monetary, optional or contingent entitlements in an agreement, 
the assumption cannot readily be made that they have the same value for all 
employees. In the case of a contingent benefit, it will be necessary to make a realistic 
assessment about the likelihood of the benefit crystallising during the period in which 
the agreement will operate.
(11) Where a loaded rates agreement results in significant financial detriment for 
existing or prospective employees compared to the relevant award, it is unlikely that a 
non-monetary, optional or contingent entitlement under the agreement will sufficiently 
compensate for the detriment for all affected employees such as to enable the 
agreement to pass the BOOT.’

[196] While on one view, the Agreement here is strictly not a loaded rates agreement, 

because the intention is for an agreement which ‘blends and averages’ the two Awards, for 

abundant caution, I shall determine whether to approve this Agreement in respect to the 

BOOT, by reference to these Principles. 

[197] In my view, the following matters are pertinent background to this process. 

[198] The applicant has gone to extraordinary lengths through an analysis of the rosters, 

payslips and assumptions advanced by both parties to justify its BOOT modelling and 

remodelling, including providing the modelling to other members of the Commission, by 

producing precisely what section 193(1) requires – that each award covered employee and 

each prospective award covered employee would be ‘better off’ if the Agreement applied. In 

my experience, few employers, for obvious practical reasons, undertake the BOOT for 

prospective employees; see: Construction, Forestry, Mining and Energy Union v John 

Holland Pty Ltd [2015] FCAFC 16. In this case, Noorton has provided calculations on current 

rosters over a two week period and then produced indicative modelling for Casual, Part-Time 

and Full-Time employees. It has undertaken the exercise with the expectation that some 

employees will opt to convert to Permanent Part-Time or Full-Time employment after six 

months. Obviously, it is pure speculation as to the number of employees who may elect do so. 

I am confounded by the Union’s criticism of this approach, given it is more likely the 








[2018] FWC 4638

84

applicant would be criticised for not undertaking the BOOT exercise in respect to 

prospectively covered employees.

[199] Secondly, the applicant has responded to, and addressed concerns identified by the 

Enterprise Agreement Triage Team and DP Gostencnik by proposing undertakings, which I 

am prepared to accept. I also intend to invite the applicant to provide undertakings in respect 

to:

(a) Reimbursement of any work related expenses; see: para [31(f)] above;

(b) Payment of wages to be only weekly or fortnightly; see: para [31(k)] above;

(c) Should Junior employees be rostered to work on a vessel as a GPH, their rate of pay 

should ensure that they are ‘better off overall’ when compared to the Awards.

[200] Thirdly, there are issues raised by the Union in respect to corresponding provisions of 

the Ports Award, said to be disadvantageous in comparison, when in fact they are better than 

the Ports Award, e.g. a minimum of four hours Part-Time engagement, when the Ports Award 

provides for two hours. Part-time provisions provide for higher rates than either Award. Four 

hour minimum engagement of casuals (three hours in the Ports Award)

Neutral or not relevant matters

[201] Those matters, which, in my opinion, are neutral in the BOOT analysis are: 

(a) transport for employees who start at one location and finish at another; and

(b) the ‘make good’ provision. As the rates of pay are higher than the two Modern 

Awards and the Agreement meets the BOOT on either Award comparison, 

‘Beechworth’ is not relevant. Mr McCarthy described the provision as just providing 

some surety for employees. I note however, that had the ‘make good’ provision been a 

relevant matter for the purposes of the BOOT, it would have been inconsistent with 

Beechworth, given the review period is 6 months. My preference would be to delete a 

provision which has no practical utility and which may lead to confusion. 

[202] Those matters which are not relevant are:

(a) The Agreement does not cover ticket sellers (only GPH/deckhands and 

hosts/hostesses);

(b) bilge allowance is not applicable;








[2018] FWC 4638

85

(c) first aid allowance does not apply, because no employees are appointed first aid 

officers;

(d) the allowance when a ship is stranded, wrecked or on fire is not applicable;

(e) higher duties provisions are not applicable. 

A small number of other conditions are referable only to the Marine Tourism Award. These 

are:

(a) part-time provisions in respect to an employee’s regular work patterns and hours;

(b) overtime rates for charter employees. 

[203] Fourthly, those matters which are more beneficial include the rates of pay. In addition,

there can be no doubt that the applicant’s acceptance of an optional Permanent Part/Full-Time 

conversion clause for long-standing Casuals is a matter of some significance for many 

employees. I note that the Full Court of the Federal Court in One Key (para [205] to [206]) 

said it was a ‘bold submission’ of the employer to put that a casual conversion clause (in other 

words the reverse of what is proposed here) was a benefit to employees. I agree. In my view, 

the corollary of this view is when a full casual workforce is offered the advantages of 

permanent employment, it must be a benefit in the BOOT assessment. I am moved to observe 

that given the Union movement’s strong opposition to ‘precarious’ employment, including to 

casual employment, that such a change would be more likely welcomed by the Union, than 

opposed. It is a matter, in my opinion, that must be taken into account when making an 

overall BOOT assessment of the Agreement, particularly when there is consideration to the 

one issue focused on by the Union – the 5am start time compared to the 6am start time under 

the Ports Award. 

[204] In the Loaded Rates Case, the Full Bench discussed the overall assessment of the 

terms and conditions in an agreement when considering the BOOT at paragraph [112]:

‘[112] The second proposition is that the BOOT requires an overall assessment to be 
made. This requires the identification of terms which are more beneficial for an 
employee, terms which are less beneficial, and an overall assessment of whether an 
employee would be better off under the agreement. Where the terms required to be 
compared bear directly upon the remuneration of employees, the assessment is 
essentially a mathematical one. However the position becomes more complex when an 
agreement contains provisions superior to or not contained in the reference award 
conferring entitlements to non-monetary benefits, benefits which are accessible at the 
employee’s choice, or monetary benefits which are contingent upon specified events 
occurring. While it is necessary to take such entitlements into account in the BOOT 








[2018] FWC 4638

86

assessment, ascertaining the value they are to be assigned may be a difficult task. This 
difficulty was adverted to in the Full Bench decision in National Tertiary Education 
Industry Union v University of New South Wales in the following terms:

“[96] There is an obvious problem of comparing apples with oranges when it 
comes to including changes to non-monetary terms and conditions into the 
‘overall’ assessment that is required by the BOOT. In such circumstances the 
Tribunal must simply do its best and make what amounts to an impressionistic 
assessment, albeit by taking into account any evidence about the significance to 
particular classes of employees covered by the Agreement of changes to non-
monetary terms that render them less beneficial than the equivalent non-
monetary term in an award.”’ (citations removed)

[205] Having carefully balanced all of the matters posited by the Union as concerns going to 

the BOOT, I am satisfied that the Agreement is BOOT compliant in that when the test of 

whether employees and prospective employees are ‘better off overall’, the answer must be in 

the affirmative. 

Other matters

[206] I intend to make further general findings on the other statutory requirements for 

approval of the Agreement. The Agreement provides for the mandatory flexibility and 

consultation terms at cls 38 and 39 respectively and a disputes resolution procedure at cl 43 

provides for conciliation and arbitration by the Commission. I also foreshadow that pursuant 

to s 201(2) of the Act, the Construction, Forestry, Maritime, Mining and Energy Union shall 

be covered by the Agreement. The Agreement will operate pursuant to s 52 of the Act, 7 days 

after my formal approval.

Disposal of proceedings

[207] The applicant is directed to file further undertakings in respect to the matters set out in 

para [199] above. Given these were matters raised by the Union, I expect they will meet the 

requirements of s 190(3) of the Act. However, to avoid falling foul of s 190(4) of the Act, 

consequent upon receipt of any undertakings, I shall seek the views of the bargaining 

representatives before formally approving the Agreement. 

[208] These proceedings are otherwise concluded.








[2018] FWC 4638

87

DEPUTY PRESIDENT

Appearances:

Mr S McCarthy, Solicitor for the applicant.
Ms L Doust, Counsel with Mr A Jacka for the Union.

Hearing details:

2018.
Sydney:
February 12 and 13.

Final written submissions:

For the applicant 16 April 2018. 
For the Union 3 April 2018. 

Printed by authority of the Commonwealth Government Printer

PR609762


ORK WORK COMMISSION FAIR THE SEAL OF

Cases cited by this decision: