1
Fair Work Act 2009
s.604—Appeal of decision
Construction, Forestry, Maritime, Mining and Energy Union
v
Noorton Pty Ltd T/A Manly Fast Ferry
(C2018/4715)
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT BINET
COMMISSIONER LEE
MELBOURNE, 31 DECEMBER 2018
Appeal against decisions [2018] FWC 4638 and [2018] FWCA 5740 of Deputy President
Sams at Sydney on 7 and 23 August 2018 in matter number AG2017/3080; whether employees
who were asked to vote to approve the agreement were “employed at the time”; whether the
agreement passed the better off over all test; error established; permission to appeal granted;
appeal upheld; decisions quashed; application to approve the agreement remitted to Member.
Introduction
[1] Noorton Pty Ltd (Noorton) made application to the Fair Work Commission
(Commission) under s.185 of the Fair Work Act 2009 (Act) for the approval of an enterprise
agreement purportedly made on 11 July 2017 titled Manly Fast Ferry – Sydney Harbour
Services – On-Board Crew – GPHs and Hosts – Enterprise Agreement 2017 (Agreement).
The Agreement is expressed to cover employees of Noorton Pty Ltd employed as either a
General Purpose Hand (GPH) or Host/Hostess or as a Junior in one of these positions in
relation to the work covered by the Agreement.
[2] The “work” is described in clause 5(e) of the Agreement relevantly as follows:
“. . . when such employees are working on the Company's vessels while those vessels
are operating:
Either:
i. Public passenger ferry services, being regular scheduled passenger
and/or commuter services on or about Sydney Harbour. To avoid doubt,
Sydney Harbour includes Darling Harbour and the Parramatta River. At the
time of the commencement of this Agreement the Company's public passenger
ferry services are its:-
1. Manly to Circular Quay public passenger service; and
2. Manly to Darling Harbour via North Sydney and Pyrmont
public passenger service.
Or:
[2018] FWCFB 7224 [Note: a correction has been issued to this document;
the changes arising have been incorporated in this version at [17]]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb7224_pr703564.htm
[2018] FWCFB 7224
2
ii. As a commercial vessel (as defined in Clause 6.) on or about or from
Sydney Harbour, which includes marine tourism and whale watching.”
[3] “Commercial vessel” is defined in clause 6(a) of the Agreement as follows:
“"Commercial Vessel" means a vessel engaged in the marine tourism and charter
vessel industry operating in, on or around bays, harbours and rivers and up to 15
nautical miles offshore as either a tourist, leisure or a sightseeing service or a cruise
service or a charter service vessel and/or as a place of or for entertainment, functions,
restaurant/food and beverage supply in relation to water orientated tourism, leisure
and/or recreational activities. It should be noted that marine tourism, leisure,
sightseeing etc. services may or may not operate in accordance with a predetermined
schedule or timetable. The vessel may be engaged on a day or part day charter or for
an overnight charter.”
[4] “Marine tourism and charter vessel industry” is defined in clause 6(d) of the
Agreement as follows:
“"Marine tourism and charter vessel industry" means the operation of vessels as a
tourist, sightseeing, sailing or cruise vessel and/or as a place of or for entertainment,
functions, restaurant/food and beverage purposes engaged in the provision of water
orientated tourism, leisure and/or recreational activities but does not include the
operation of ferries engaged in regular scheduled passenger and/or commuter
transport.”
[5] According to the statutory declaration1 filed in support of the application for approval
of the Agreement, employees employed at the time who are covered by the Agreement were
asked to approve the Agreement by voting for it on 11 July 2017.2 Forty four employees cast
a valid vote and 23 employees voted to approve the Agreement.3 One vote the other way
would have had the result that the Agreement would not have been made.
[6] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) was
relevantly a bargaining representative for the Agreement. It opposed approval of the
Agreement but gave notice pursuant to s.183(1) of the Act that it wanted to be covered by the
Agreement.4 We note that the decision approving the Agreement does not contain a note that
the Agreement covers the CFMMEU as required by s.201(2) of the Act. The CFMMEU
opposed the approval of the Agreement on several grounds set out in the statutory declaration
of an employee organisation in relation to the approval of an enterprise agreement.5 The
Agreement was approved with undertakings by Deputy President Sams in a decision issued
on 23 August 2018 (Approval Decision).6 His reasons for doing so are contained in an earlier
decision given on 7 August 2018 (Reasons for Decision).7
1 Appeal Book pp.172 –233
2 Appeal Book p.178
3 Ibid
4 Appeal Book pp.234 – 236
5 See in particular Appeal Book pp.234 –235
6 [2018] FWCA 5740
7 [2018] FWC 4638
[2018] FWCFB 7224
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[7] The notice of appeal lodged on 24 August 2018 identifies that the appeal is against a
decision issued on 7 August 2018 identified by its medium neutral citation of [2018] FWCA
4521. The medium neutral citation of that decision was subsequently amended by the Deputy
President’s Chambers to [2018] FWC 4638. That decision does not in terms approve the
Agreement, although it indicates that subject to undertakings being received that outcome is
likely.8 It deals only with the matters raised by the CFMMEU in opposition to the approval of
the Agreement. The decision approving the Agreement was made on 23 August 2018 and has
a medium neutral citation of [2018] FWCA 5740.
[8] The parties to this appeal were alerted to the fact that the notice of appeal seeks to
appeal only the Reasons for Decision which contain the Deputy President’s reasons for
rejecting the objections raised by the CFMMEU and does not appeal the Approval Decision.9
The CFMMEU subsequently sought leave to amend its notice of appeal to include the
Approval Decision.10 Noorton did not oppose this course.11
[9] In the circumstances, we have decided to grant leave to amend the notice of appeal by
including in it an appeal against the Approval Decision. To the extent that it is necessary to do
so, pursuant to Rule 6 of the Fair Work Commission Rules 2013, we dispense with the
requirement under Rule 56(2) to lodge an appeal against the Approval Decision within 21
days after the day on which the Approval Decision was made.
[10] The CFMMEU lodged an appeal pursuant to the amended notice of appeal against the
decisions pursuant to s.604 of the Act for which permission must be obtained.
Consideration
The decision the subject of appeal
[11] The Deputy President sets out some background to the application for approval at [1]–
[11] of the Reasons for Decision. At [13]–[82], the Deputy President sets out a summary of
the evidence given in the proceeding. At [83]–[109] and [136]–[154], the Deputy President
sets out a summary of the submissions of Noorton and those responsive to the case put in
opposition by the CFMMEU. At [110]–[135], the Deputy President sets out a summary of the
submissions of the CFMMEU.
[12] The Deputy President begins his consideration at [155] of the Reasons for Decision.
There, he distilled the objections raised by the CFMMEU into six issues12 as follows:
1. Whether Noorton Pty Ltd is an employer capable of making an enterprise
agreement and making an application for approval of the Agreement;
2. Whether the applicant, Noorton Pty Ltd complied with all of the statutory pre-
approval steps for the making of an enterprise agreement;
8 Ibid at [207]
9 Email to parties dated 23 November 2018
10 Email from CFMMEU dated 23 November 2018
11 Email from Holman Webb on behalf of Noorton dated 27 November 2018
12 [2018] FWC 4638 at [155]
[2018] FWCFB 7224
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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;
4. Whether there were other reasonable grounds for believing the Agreement had
not been ‘genuinely agreed’ by the employees;
5. Whether the Ports Award is the only Award which would otherwise cover the
work performed by employees of Noorton Pty Ltd; and
6. Whether the Agreement satisfies the Better Off Overall Test (BOOT).
[13] In determining these issues the Deputy President concluded:
that a compliant NERR had been issued by Noorton on 6 June 2017;13
that Noorton had initiated bargaining directly with its employees;14
the voting cohort of casual employees were engaged by Noorton on an ongoing
basis with regular and systematic employment15 and were employed at the time
within the meaning of s.182(1) of the Act;16
there were no other reasonable grounds for believing the agreement had not been
genuinely agreed to by the employees;17
two modern awards, the Marine Tourism and Charter Vessels Award 2010
(Marine Tourism Award) and the Ports, Harbours and Enclosed Water Vessels
Award 2010 (Ports Award) were the relevant reference instruments against which
the BOOT is to be assessed;18 and
the Agreement passed the BOOT;19 once he accepted undertakings.20
Grounds of appeal
[14] The CFMMEU advances three grounds of appeal. Without reciting each of the
grounds at length, the first concerns whether the Deputy President could be satisfied that
relevant employees genuinely agreed to the Agreement because he could not be satisfied that
Noorton had complied with s.181(2) of the Act. Compliance turns on, relevantly, whether
there was a notification time so as to establish whether there had been compliance with
s.173(3) and therefore s.173(1).
[15] By the second appeal ground, the CFMMEU contends that the Deputy President erred
in concluding that the employees who were requested to approve the Agreement by voting for
it were employed at the time within the meaning of that term in s.181(1) of the Act.
[16] The third ground concerns the BOOT, and by it the CFMMEU contends, inter alia,
that the Deputy President erred in his conclusion that the Agreement passed the BOOT
13 Ibid at [166]
14 Ibid at [169]-[171]
15 Ibid at [180]-[181]
16 Ibid at [182]
17 Ibid at [187]-[188]
18 Ibid at [189]-[190]
19 Ibid at [205]
20 [2018] FWCA 5740
[2018] FWCFB 7224
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because he was in error in failing to conclude that the Ports Award applied to the exclusion of
the Marine Tourism Award vis-a-vis the relevant employees.
Employees employed at the time
[17] It is convenient that we begin with the second ground of appeal. Section 186(1)
requires the Commission to approve an enterprise agreement if the requirements in that
section and in s.187 are met. The requirement in s.186(2)(a) is that the Commission must be
satisfied that the Agreement has been genuinely agreed to by the employees covered by the
Agreement. Section 188(1)(b) of the Act provides that an enterprise agreement has been
genuinely agreed to by the employees covered by the agreement if the Commission is
satisfied the agreement was made in accordance with, relevantly, s.182(1) of the Act. That
section provides that if employees have been asked to vote to approve the agreement under
s.181(1), the agreement is made when a majority of those employees cast a valid vote to
approve it.
[18] Section 181(1) of the Act provides that 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.
[19] The phrase “employees employed at the time” in s.181(1) of the Act received
consideration by a Full Court of the Federal Court in National Tertiary Education Union v
Swinburne University of Technology.21 The effect of the Full Court’s reading22 of s.181(1) is
that an employer should only make a request under s.181(1) to employees who are employed
“at the time”, as opposed to those who are not employed at the time but who might otherwise
be regarded as “usually employed”.23
[20] It is uncontroversial that all of the employees who were asked by Noorton to vote to
approve the Agreement were casual employees. A casual employee has no firm advance
commitment from the employer to continuing and indefinite work according to an agreed
pattern of work. Nor does a casual employee provide a reciprocal commitment to the
employer.24 Irregular work patterns, uncertainty, discontinuity, intermittency of work and
unpredictability are the usual manifestations of an absence of a firm advance commitment.25
[21] Ordinarily, the general contractual characteristics of casual employment is that a
person who works over an extended period of time as a casual employee will be engaged
under a series of separate contracts of employment on each occasion a person undertakes
work, however, they will not be engaged under a single continuous contract of
employment.26 There are some, albeit rare, cases where a casual employee has been found to
have been engaged under a single continuing contract of employment,27 but the accepted
21 (2015) 232 FCR 246
22 Per Jessup J with White J agreeing
23 (2015) 232 FCR 246 at [24], [27] and [38]
24 WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [172]
25 Ibid at [173]
26 Predl v DMC Plastering Pty Ltd [2014] FCCA 1066
27 See AJ Mills & Sons Pty Ltd v Transport Workers’ Union of New South Wales [2009] NWSIRComm 135; (2009) 187 IR
56, which involved a casual engagement requiring a racing steward to attend throughout the year
[2018] FWCFB 7224
6
orthodoxy of casual employment is the notion that each engagement is under a separate
contract rather than a continuing contract of employment.
[22] Thus, a person who is a casual employee but who is not working on a particular day or
during a particular period, is unlikely to be employed on that day or during that period.
[23] The cohort of employees entitled to be asked to vote under s.182(1) are those who
were: “employed at the time” (of the request to vote or perhaps also during the access
period28) and who “will be covered by the agreement” (the employees that fall within the
coverage, however described, of the Agreement).
[24] It must be said that the evidence as to the employment terms of the casual employees
who were asked to vote to approve the Agreement was limited. There was no evidence before
the Deputy President that the casual employees who were asked to vote to approve the
Agreement had terms assuring their tenure or other forms of assurances of ongoing
engagement or that any employee was entitled to or received any paid leave.
[25] There are no contracts of employment, letters, emails or any other document which
might show, discuss or disclose the terms of engagement of the casual employees or the
positions into which the employees were, at the time they were asked to vote, engaged.
[26] A number of time sheets for the casual employees who were requested to vote to
approve the Agreement are contained in the evidence.29 The CFMMEU summarised that
material before the Deputy President30 and it appears to show that of the group of casual
employees who are asked to vote to approve the Agreement:
a) 5 of the employees were not at work on the day of the vote (Employees 2, 6,
11, 16 and 38);
b) 4 of those employees (Employees 2, 6, 11, and 16) were not at work for
periods between one and over four months covering the period during which the vote
occurred;
c) there was no evidence for one of those employees (Employee 38) of the
performance of any shift subsequent to the date of the vote;
d) for one employee (Employee 12) there is no record of the employee working
on duties as a deckhand or general purpose hand or host, and that employee was
marked as “Raratonga Cook Islands Whale Research” from one week following the
vote without any scheduled date of return;
e) for one employee on a traineeship (Employee 20) there is no record of the
employee performing any shifts subsequent to 12 July 2017, the day after the ballot;
f) one employee (Employee 33) had only worked three days as a deckhand; and
28 (2015) 232 FCR 246 at [25]
29 Appeal Book pp.1492-1607
30 Ibid at p.461, Table 1
[2018] FWCFB 7224
7
g) for one employee (Employee 37) such records as were produced showed only
that the employee had worked shifts as sales staff, a role that would not be covered by
the Agreement.
[27] As to this material, the Deputy President concluded relevantly that the employees in a)
were absent “on a period of leave at the time of the vote” and that all five were expected to
resume work and did resume work after the period of leave.31 The employees in d), e) and f)
worked on the day of the vote as deckhands and were entitled to vote.32 The employee in g) is
a ticket seller who also performs shifts as a deckhand and was entitled to vote.33
[28] The Deputy President had earlier dealt with the CFMMEU’s objection underpinning
this ground of appeal as follows:
“[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 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’.”34
[29] The Deputy President also referred to that which he considered to be the “important
paragraphs relevant to this case” from the decision in Swinburne.35 To the extent that he
appears to have relied upon those passages to support his conclusion that the evidence
established that the employees were not just “usually employed”, the Deputy President was in
error. The passages upon which the Deputy President relied are from the judgment of Pagone
J in Swinburne.36 They are at odds with the conclusion of Jessup J (with whom White J
agreed) as to the proper construction of “employees employed at the time” in s.181(1) of the
Act.
31 [2018] FWC 4638 at [184]
32 Ibid
33 Ibid
34 Ibid at [180]–[182]
35 Ibid at [175]
36 (2015) 232 FCR 246 at [30]-[32]
[2018] FWCFB 7224
8
[30] As we have earlier noted, there was an absence of evidence before the Deputy
President about the nature of the engagement which underpinned the casual employment of
the persons who were asked to vote to approve the Agreement. It is plain on the evidence that
at least some of the employees who were asked to vote to approve the Agreement did not
work on the day of the vote or during the access period. It is difficult to see how one can
conclude that these employees were “employed at the time” without evidence about the terms
under which they were engaged. It is equally difficult to see how one can conclude that
particular casual employees were “on leave” at the relevant time without evidence about the
terms under which these casual employees were engaged.
[31] That the employer “considers” the employees are regular and systematic casual
employees37 takes the matter no further. First, because the subjective opinion of the employer
is not relevant to ascertaining objectively the nature of the employment. Secondly, that a
person is engaged on a regular and systematic basis is not inconsistent with the person being a
casual employee whose employment is ended at the conclusion of each engagement and
relevantly was not “employed” at the time he or she was asked to vote or during the access
period. There is no evidence, for example, of a firm advance commitment from Noorton to
continuing and indefinite work according to an agreed pattern of work which was given to any
particular casual employee. This is because there is a complete absence of any material which
goes to the nature of the engagement of the casual employees at issue.
[32] During the appeal, Noorton referred to the decision in McDermott Pty Ltd v the
Australian Workers’ Union and Anor38 in aid of the Deputy President’s conclusion that the
cohort of casual employees who were asked to vote were employed at the time. Whilst we
may have some misgivings about the correctness of McDermott, it is unnecessary for us to
express a concluded view. The decision is plainly distinguishable on the facts. The critical
conclusion in McDermott was that the casual employees “accepted on-going employment”
with McDermott as evidenced by the employer’s payroll records and the evidence of Mr
McMahon, and as such they were employed by McDermott at the time the Agreement was
made. Their employment comprehended work within McDermott’s scope of work for the
Project. Unlike the facts in Swinburne, the casual employees were employed at the time, they
were not in a cohort of “likely to be engaged” or “usually employed.”39 The reasoning
adopted by the Full Bench in McDermott might be said to be more akin to a conclusion that
the relevant employees were not “casual employees” at all but rather were “ongoing
employees” who had accepted “ongoing employment”.
[33] There was no evidence before the Deputy President that the casual employees who
were asked to vote to approve the Agreement accepted ongoing employment with Noorton.
As we have already observed, there was no evidence about the nature of the casual
employment of the employees or the terms under which these employees were engaged. The
decision in McDermott therefore provides no assistance.
[34] The paucity of the evidence, in relation to particular employees, is perhaps
encapsulated by the following exchange between the solicitor appearing for Noorton and the
Bench during the appeal:
37 See [2018] FWC 4638 at [181]
38 [2016] FWCFB 2222
39 Ibid at [35]-[38]
[2018] FWCFB 7224
9
“In relation to Employee 38 - - -
DEPUTY PRESIDENT GOSTENCNIK: Was there evidence that that employee was
working as a general purpose hand at the time of the vote?
MR MCCARTHY: No, there's not.
DEPUTY PRESIDENT BINET: Is there any evidence that he worked any time as a
general hand?
MR MCCARTHY: Not specifically, no, other than the witness evidence given by Mr
Ford that the employee has worked for Mr Ford via the company, as you can see, for
many, many years and it was Mr Ford's uncontested evidence under cross-examination
that the employment history and arrangement of this employee is that he works
generally in ticket sales, but, from time to time, will step in, and is qualified to do so,
to work as a general purpose hand on vessels.
DEPUTY PRESIDENT BINET: Where is that evidence? In the transcript?
MR MCCARTHY: In the transcript, yes.
DEPUTY PRESIDENT BINET: Where?
MR MCCARTHY: I'm afraid I don't have that.
DEPUTY PRESIDENT BINET: Because, at the moment, I don't think we have been
taken to any evidence. There was evidence of the process by which the employees
were identified and that explained that they appeared in the payroll system under that
category, but evidence that he actually performed those shifts - - -
MR MCCARTHY: Yes.
DEPUTY PRESIDENT GOSTENCNIK: And there was no evidence, just further on
that, as to how they were categorised in that payroll system.
MR MCCARTHY: No, the evidence, your Honour, that is before the Commission in
relation to the time of the vote was that the employee was on a roster, an employment
roster, was working. On the particular day, he was rostered off, but he was rostered on
to work in ticket sales.
DEPUTY PRESIDENT BINET: Yes.
MR MCCARTHY: And his engagement as a general purpose hand under the
agreement is periodic.
DEPUTY PRESIDENT BINET: But is there any evidence that he actually worked as
a general purpose hand?
MR MCCARTHY: At all?
[2018] FWCFB 7224
10
DEPUTY PRESIDENT BINET: Yes.
MR MCCARTHY: No, there's not, your Honour.”40
[35] For these reasons, we consider that the Deputy President erred in his conclusion that
the relevant employees who are casual employees and who were asked to vote to approve the
Agreement were all “employees employed at the time”. It is to be remembered that the vote to
approve the Agreement succeeded in effect by one vote. This required some not insignificant
attention to that which the evidence did or did not disclose vis-a-vis individual members of
the cohort of employees who were asked to approve the Agreement. It follows that on the
basis of the paucity of evidence before the Deputy President about the nature of, and the terms
under which employees were engaged as casual employees by Noorton, he could not be
satisfied that the Agreement was made in accordance with s.182(1) of the Act and so could
not be satisfied as to s.186(2)(a).
The better off overall test
[36] We have earlier set out the relevant coverage provisions of the Agreement. In
summary, clause 5(e) of the Agreement contains its coverage vis-a-vis general purpose hands
and hosts/hostesses working on Noorton’s vessels whilst those vessels are operating, either
public passenger ferry services or as commercial vessels on or about Sydney Harbour,
including marine tourism and whale watching. Before the Deputy President, the CFMMEU
argued that the Ports Award covered the employees in respect of the work that was covered
by the Agreement, and so it was the appropriate reference instrument for the purpose of the
BOOT.
[37] The Deputy President decided that both the Ports and the Marine Tourism Awards
were relevant to the BOOT. His reasoning was as follows:
“[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
40 Transcript at PN318-PN336
[2018] FWCFB 7224
11
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 Noorton's on-board vessel operations. I shall return
to the Union’s BOOT submissions shortly.”41
[38] The CFMMEU contended before the Deputy President that Noorton’s 1000 weekly
timetabled ferry services between the Sydney Harbour wharves at Manly, Circular Quay,
Darling Harbour, Pyrmont, North Sydney, Rose Bay and Watsons Bay were ferry services
caught by the Ports Award, and that relevant employees were excluded from coverage by the
Marine Tourism Award. The CFMMEU says that to the extent that Noorton and its
employees engaged in whale and other leisure and tourism cruises, Noorton did not lead
evidence as to the extent of that activity, whether in terms of revenue, working hours or
numbers of services. Consequently, the Deputy President could not determine in respect of
any particular employee or employees, whether they engaged in sufficient non-ferry work for
the purposes of assessing whether they were wholly or substantially covered by the Marine
Tourism Award.
[39] The Ports Award is expressed to cover employers throughout Australia in ports,
harbours and enclosed water vessels industries and their employees in classifications listed
elsewhere in the award but does not cover employers and employees “wholly or substantially”
covered by, relevantly, the Marine Tourism Award.42 “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 one or more of the excluded awards to which reference is made in clause 4.1.43
[40] Clause 4.9 of the Ports Award provides that where an employer is covered by more
than one award, an employee of that employer is covered by the award classification which is
most appropriate to the work performed by the employee and to the environment in which the
employee normally performs the work.
[41] The Marine Tourism Award covers employers throughout Australia in the marine
tourism and charter vessels industry and their employees in the classifications listed elsewhere
in the award. It operates to the exclusion of any other modern award.44 “Marine tourism and
charter vessel industry” means “the operation of vessels engaged on a day charter or for an
overnight charter wholly or principally as a tourist, sightseeing, sailing or cruise vessel and/or
as a place of or for entertainment, functions, restaurant/food and beverage purposes engaged
in the provision of water orientated tourism, leisure and/or recreational activities but does not
41 [2018] FWC 4638 at [189]-[190]
42 Clause 4.1 of the Ports Award
43 Ibid
44 Clause 4.1 of the Marine Tourism Award
[2018] FWCFB 7224
12
include the operation of ferries engaged in regular scheduled passenger and/or commuter
transport.”45
[42] Clause 4.7 of the Marine Tourism Award is in the same terms as clause 4.9 of the
Ports Award.
[43] Clause 13 of the Ports Award contains classifications and minimum wages for Master,
Mate, Engineer, Shipkeeper, Crane Driver (under 20 tonnes) and (over 20 tonnes), and
General-Purpose Hand, Deck Hand, Greaser, Passenger Attendant, Turnstile Attendant,
Boating Attendant, Host, Fireman, Trimmer, Linesman, Cook, Sailor, Able Seaman and
Leading Hand.
[44] Clause 13 of the Marine Tourism Award contains classifications and minimum wages
for overnight charter employees and non-overnight charter employees as well as for junior
crew hands. The various classifications contained therein are Crew Level 1, 2 and 3, Dive
Master/Dive Instructor, Coxswain, Engineering Med I, II and III, and Master IV and V.
[45] In order that an employer and a particular employee is covered by the Marine Tourism
Award the employer must be in the Marine tourism and charter vessel industry and their
employees, inter alia, must be employed by that employer in that capacity and be in a
classification listed in the award.
[46] It is plainly the case, as the Deputy President concluded, that an employer may be
covered by more than one modern award. That this is the case in respect of the Ports Award
and the Marine Tourism Award is evident by clauses 4.9 and 4.7 respectively of those awards.
The Deputy President observed that it was 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.46 It is not clear to us how it is that,
on the state of the evidence, the CFMMEU’s proposition as to the exclusivity of coverage of
the Ports Award, could be said to be wrong. It may be wrong, but to be so satisfied, this
would have required some evidence about the extent to which Noorton and its employees are
engaged in whale and other leisure and tourism cruises. There was no evidence about the
extent of these activities, whether in terms of revenue, working hours or numbers of services,
or the time that employees spent or might spend engaged on vessels undertaking these
activities so that one could assess for example in respect of any particular employee or a
group of employees, whether and to what extent they engaged in non-ferry work. This is
relevant for the purpose of assessing whether one or more employees (or prospective award
covered employees) are or would likely be wholly or substantially covered by the Marine
Tourism Award.
[47] But even if some employees or prospective employees are or would be covered by the
Marine Tourism Award, since the Agreement in terms does not preclude employees being
engaged exclusively in work that would otherwise fall within the Ports Award, the application
of the BOOT required a consideration of whether any existing or prospective Ports Award
covered employee would be better off overall if the Agreement applied than if the Ports
Award applied to that employee at test time.
45 Ibid at clause 3.1
46 [2018] FWC 4638 at [189]
[2018] FWCFB 7224
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[48] The following shows that on a wage comparison between the wages payable under the
Agreement as compared to the Ports Award in the situations identified below, the Port Award
employees and prospective Ports Award employees cannot be said to be better off overall
under the Agreement compared to the Ports Award. There is no suggestion that there are other
benefits in the Agreement which would offset the detriment identified below.
a) Pay rate comparison: The pay rate comparison below shows that the rate of pay for a
casual Host/Hostess under the Agreement is 5.69% below the corresponding rate of the pay in
the Ports Award which was not remedied by an undertaking.
PAY RATE COMPARISON
Modern Award
Classification
Agreement
Classification
Modern
Award Rate
Agreement
Rate
Percentage
Difference
Ports, Harbours &
Enclosed Water
Vessels Award 2010
Permanent employees
Host/Hostess Host/Hostess $22.48 $22.56 0.36%
GPH GPH $22.48 $26.62 18.42%
Casual Casual
Host/Hostess Host/Hostess $28.10 $26.50 -5.69%
GPH GPH $28.10 $29.50 4.99%
b) Model 1 (Full time employees – Host/Hostess classification): The model considers
full time employees working a 38 hour week between Monday to Friday and assumes 8 hours
of work each day commencing at 5:00am, without overtime penalties for work performed
between 5:00am and 6:00am. This model has been constructed in light of the undertaking
dealing with the span of ordinary hours for daywork. The undertaking is that for full time
employees, ordinary hours of work while on daywork shall be worked between 5:00am and to
6:00pm. The model below indicates that if full time employees in the Host/Hostess
classification work 8 hours commencing at 5:00am each day on Monday to Friday without
receiving overtime penalties for work between 5:00am and 6:00am, these employees would
not be better off in comparison to the Ports Award based on a 38 hour week model.
MODEL 1
Agreement
Ordinary
Rate
$22.56 Host/Hostess Ports Award $22.48 Host
Hours Loading
Weekly
total
Hours Loading
Weekly
total
Monday -
Friday 5am
to 6am
5 100% $112.80
Monday -
Friday 5am to
6am
5 150% $168.60
Monday -
Friday 6am
to 1pm
33 100% $744.48
Monday -
Friday 6am to
1pm
33 100% $741.84
Allowances Amount Value Allowances Amount Value
Annual
Leave
Yes $65.94 Annual Leave Yes $65.71
[2018] FWCFB 7224
14
Leave
Loading
No $0.00 Leave Loading Yes $11.50
Totals 38 Hrs $923.22 Totals 38 Hrs $987.65
c) Model 2 (Part time employees – Host/Hostess classification): The model considers
part time employees working 5:00am to 9:00am Monday to Wednesday (3 days), without
overtime penalties for work performed between 5:00am and 6:00am. This model has been
constructed in light of the undertaking dealing with span of ordinary hours for daywork. The
undertaking is that for part time employees ordinary hours of work while on daywork shall be
between 5:00am and to 6:00pm, for not less than 4 consecutive ordinary hours. The modelling
indicates that if part time employees in the Host/Hostess classification work a minimum
engagement of 4 hours per shift between 5:00am to 9:00am Monday to Wednesday without
overtime payable for work performed between 5:00am and 6:00am, these employees would
not be better off in comparison to the Ports Award based on a 12 hour per week model.
MODEL 2
Agreement
Ordinary
Rate
$22.56 Host/Hostess Ports Award $22.48 Host
Hours Loading
Weekly
total
Hours Loading
Weekly
total
Monday -
5am to 6am
1 100% $22.56
Monday -
5am to 6am
1 150% $33.72
6am to 9am 3 100% $67.68 6am to 9am 3 100% $67.44
Tuesday -
5am to 6am
1 100% $22.56
Tuesday -
5am to 6am
1 150% $33.72
6am to 9am 3 100% $67.68 6am to 9am 3 100% $67.44
Wednesday-
5am to 6am
1 100% $22.56
Wednesday -
5am to 6am
1 150% $33.72
6am to 9am 3 100% $67.68 6am to 9am 3 100% $67.44
Allowances Amount Value Allowances Amount Value
Annual
Leave
Yes $20.82 Annual Leave Yes $20.75
Leave
Loading
No $0.00
Leave
Loading
Yes $3.63
Totals 12 Hrs $291.54 Totals 12 Hrs $327.86
d) Model 3 (Casual employees – GPH classification): The model considers casual
employees working 5:00am to 9:00am Monday to Wednesday (3 days), without overtime
penalties for work performed between 5:00am and 6:00am. This model has been constructed
in light of the undertaking dealing with span of ordinary hours for daywork. The undertaking
is that for casual employees, ordinary hours of work while on daywork shall be worked
between 5:00am and to 6:00pm, for not less than 4 consecutive ordinary hours. The modelling
indicates that if casual employees in the GPH classification work a minimum engagement of 4
hours per shift between 5:00am to 9:00am Monday to Wednesday without overtime payable
[2018] FWCFB 7224
15
for work performed between 5:00am and 6:00am, these employees would not be better off in
comparison to the Ports Award based on a 12 hour week model. The outcome is in essence
the same as under the Ports Award ($0.06 difference). Note: clause 10.3 (b) of the Ports
Award appears to indicate that the casual loading is payable on ordinary hours of work and
therefore it does not appear to be all-purpose. Modelling below has reflected this on this
assumption.
MODEL 3
Agreement
Ordinary
Rate
$29.50 GPH
Award
Ordinary
Rate
$22.48 GPH
Hours Loading
Weekly
total
Hours Loading
Weekly
total
Monday -
5am to 6am
1 100% $29.50
Monday -
5am to 6am
1 150% $33.72
6am to 9am 3 100% $88.50 6am to 9am 3 125% $84.30
Tuesday -
5am to 6am
1 100% $29.50
Tuesday -
5am to 6am
1 150% $33.72
6am to 9am 3 100% $88.50 6am to 9am 3 125% $84.30
Wednesday-
5am to 6am
1 100% $29.50
Wednesday
- 5am to
6am
1 150% $33.72
6am to 9am 3 100% $88.50 6am to 9am 3 125% $84.30
Allowances Amount Value Allowances Amount Value
Annual
Leave
No $0.00
Annual
Leave
No $0.00
Leave
Loading
No $0.00
Leave
Loading
No $0.00
Totals 12 Hrs $354.00 Totals 12 Hrs $354.06
e) Model 4 (Full time shiftworkers – considering work performed one hour outside
Circular Quay timetable (i.e finish at 10:25pm) Host/Hostess classification): The model
considers shiftworker employees working all hours on an afternoon shift with no Modern
Award shift penalties being payable. The Agreement does not provide afternoon shift
penalties. The Ports Award provides afternoon shift penalties of 15% are payable for any shift
finishing after 6:00pm and at or before midnight. Indicative modelling suggests that if
employees in the Host/Hostess classification work all hours on an afternoon shift for the
purposes of the Ports Award, these employees do not appear better off overall under the
Agreement.
MODEL 4
Agreement
Ordinary
Rate
$22.56 Host/Hostess
Ports
Award
$22.48 Host
[2018] FWCFB 7224
16
Hours Loading
Weekly
total
Hours Loading
Weekly
total
Ordinary
time
38 100% $857.28
Ordinary
time
38 115% $982.38
Allowances Amount Value Allowances Amount Value
Annual
Leave
Yes $65.94
Annual
Leave
Yes $65.71
Leave
Loading
No $0.00
Leave
Loading
Yes $11.50
Totals 38 Hrs $923.22 Totals 38 Hrs $1,059.59
[49] For these reasons, we consider the Deputy President erred in his assessment that the
Agreement passed the BOOT even when the undertakings are taken into account.
The notification time point
[50] We return to the first ground of appeal. We accept that the Deputy President’s Reasons
for Decision is open to criticism in the sense that reliance on the conduct of an employer that
is not making the Agreement is not relevant to the question of whether Noorton agreed to or
initiated bargaining for the purpose of ascertaining a notification time. We also accept that the
text message to an employee who is not amongst the cohort to be covered by the Agreement is
not evidence of Noorton initiating bargaining. Nonetheless we consider that there was a
notification time and on the evidence notices of employee representational rights were given
within the timeframe prescribed in s.173(3) of the Act.
[51] We consider this to be the case for the following reasons. First, the employer’s
statutory declaration filed in support of the approval of the Agreement sets out that the day on
which the employer agreed to bargain was 6 June 2017.47 Secondly, the notice of employee
representational rights was given on that day. Thirdly, whilst the issuing of a notice of
employee representational rights does not in and of itself initiate bargaining, it is nonetheless
evidence of conduct which is consistent with the employer having initiated bargaining.
Fourthly, the memorandum to relevant employees dated 29 June 2017 provides, inter alia,
that Noorton “is seeking to establish a new enterprise agreement with its general-purpose
hands and host/hostess employees”.48 This is consistent with Noorton having initiated
bargaining as set out in its statutory declaration. The notice of employee representational
rights itself informs the reader that Noorton “is bargaining in relation to an enterprise
agreement”.49 We are therefore satisfied that there was a notification time as specified in the
statutory declaration and that the relevant notice of employee representational rights was
given within the period required by the Act. This ground of appeal therefore fails.
Conclusion
[52] For the reasons given, we are satisfied that the appeal raises important questions about
the operation of s.182(1) of the Act and about the application of the BOOT. As should be
evident from our discussion above, we consider the decision is attended by appealable error as
to these matters. Permission to appeal is therefore granted. For the reasons given, we would
47 Appeal Book p.178
48 Ibid at p.200
49 Ibid at p.194
[2018] FWCFB 7224
17
uphold the appeal in respect of grounds 2 and 3 but dismiss the appeal in respect of ground 1.
The decisions against which the appeal is made should be quashed. The Application to
approve the Agreement should be remitted for determination.
[53] We therefore order as follows:
a. Permission to appeal is granted;
b. The appeal is upheld on grounds 2 and 3 of the notice of appeal but is otherwise
dismissed;
c. The decisions in [2018] FWCA 5740 and [2018] FWC 4638 are quashed; and
d. The application for the approval of the Agreement is remitted to Deputy President
Sams to determine having regard to our decision.
DEPUTY PRESIDENT
Appearances:
L Doust of Counsel for the Appellant.
S McCarthy for the Respondent.
Hearing details:
2018.
Sydney:
October 17.
Printed by authority of the Commonwealth Government Printer
PR702639
VOISSINNO
