1 Fair Work Act 2009 s.319 - Application for an order relating to instruments covering new employer and non- transferring employees Curtis Island Services Pty Ltd (AG2024/63) Marine tourism and charter vessels COMMISSIONER SIMPSON BRISBANE, 31 JANUARY 2024 Application for an order relating to instruments covering new employer and non-transferring employees [1] Curtis Island Services Pty Ltd (Curtis Island Services/the Applicant) has applied for an order under section 319 of the Fair Work Act 2009 (the Act) to the effect that the Whitsunday Charter Boat Industry Association Enterprise Agreement 2016 (the Agreement) will cover non-transferring employees who would otherwise be covered by the Award in their employment with Curtis Island Services Pty Ltd. [2] The Applicant seeks the following order: “The Whitsunday Charter Boat Industry Association Enterprise Agreement 2016 (“the Agreement”) will cover the non-transferring employees of Curtis Island Services Pty Ltd who are employed in one of the classifications listed in Part 4 of the Agreement.” Background [3] The Applicant will commence operation in accordance with the contract of sale with Red Cat Adventures and Whitsunday Jetski Adventures on 1 February 2024. [4] The Applicant has acquired assets of the outgoing operators and employees of the outgoing operators will become transferring employees of the Applicant. [5] The Whitsunday Charter Boat Industry Association Enterprise Agreement 2016 is the transferable instrument that will apply to the transferring employees. [6] There is no other enterprise agreement that would otherwise cover new non transferring employees. It was submitted that the Marine Tourism and Charter Vessels Award 2020 and the Clerks – Private Sector Award 2020 are the modern awards that would otherwise cover new non transferring employees. [2024] FWC 265 DECISION [2024] FWC 265 2 Section 319(3) Considerations Section 319(3)(a)(i): [7] It is the view of the new employer that industrial harmony and operational efficiency is best achieved by ensuring that the terms and conditions that apply to the transferring employees also apply to non-transferring employees performing the same work. Section 319(3)(a)(ii): [8] It was submitted currently no non-transferring employees have been employed. There are no unions that are a party to the Agreement. Section 319(3)(b): [9] It was submitted no employees will be disadvantaged by the orders. It was submitted the orders ensure that existing terms and conditions of the Agreement (under which employees are better off overall when compared to the modern award) applies to all employees. Section 319(3)(c): [10] It was submitted the transferring instrument passed its nominal expiry date on 1 December 2020. • The Agreement is a multi-enterprise agreement made by the Whitsunday Charter Boat Industry Association Inc. T/A Whitsunday Charter Boat Industry Association. • Negotiations on a new enterprise agreement would involve all members listed in clause 1.2.2 of the Agreement. To date, there has not been any recommendation made by an Association member to commence negotiations for a new agreement. • The current rates of pay as at 1 July 2023 were submitted with the application - Effective 1st of July 2023. • Making the orders allows for the Agreement reached with the transferring employees to apply to new employees until the Agreement is replaced or terminated. Section 319(3)(d): [11] It was submitted the transferable instrument, applying to all employees performing that work rather than only transferring employees, will not have a negative impact on productivity. Directions Hearing [12] On Thursday 25 January 2024, a Directions Hearing was conducted. At the conclusion of the Directions Hearing, directions were issued as follows: [2024] FWC 265 3 “… 2. By close of business Tuesday, 30 January 2024 the Commission will provide a Commission prepared analysis comparing the Whitsunday Charter Boat Industry Association Enterprise Agreement 2016 to the Marine Tourism and Charter Vessels Award 2020 and the Clerks – Private Sector Award 2020; 3. If the Applicant wishes to provide submissions in response to the analysis, this is to be done by 12:00PM (Qld time) Wednesday 31 January 2024. …” Further Analysis [13] On 30 January 2024, the Commission provided an analysis which noted the following: 1. The Commission was unable to identify any classifications which would otherwise be covered by the Clerks – Private Sector Award 2020. Therefore, the analysis only compared the Whitsunday Charter Boat Industry Association Enterprise Agreement 2016 to the Marine Tourism and Charter Vessels Award 2020. 2. The only reduction identified is as follows: a. Casual loading: Cl.3.5.1(d) of the Agreement provides that casuals who work overtime will receive their 25% loading in addition to overtime penalties and then provides an example of how the loading is applied cumulatively to the overtime penalty. Whereas under the Award casuals receive overtime penalties and casual loading on a compound basis. Given many of the rates are marginally above the Award they will not be high enough to compensate for this reduction. Applicant Response [14] The Applicant acknowledged the issue identified in the Commission’s analysis, however submitted it is unlikely to result in any underpayments for the following reasons: • Given the nature of the businesses’ operations, working to strict timetables, overtime is rarely worked. • A review of hours worked by employees during December 2023, one of the peak periods for the businesses shows only three employees worked in excess of 38 hours in any week during this period. • Each of these employees are employed as a Master V and are paid an hourly rate in excess of those posted in the Agreement given their experience. • The table attached to the email compared how much each Master received for the month of December against what they would have received under the Award and the Agreement. [2024] FWC 265 4 • When comparing the pay the three employees received against what they otherwise would have received under the Award or the Agreement, each employee was better off under the Agreement. • The Applicant submitted that Cl. 3.21 and 3.5 of the Agreement allow for hours worked, including overtime, may be averaged over 12 months. [15] The Applicant submitted that should the Commission remain concerned that casual rates will not be high enough to compensate for any underpayment, the Applicant is amenable to providing an undertaking that no casual employee will be worse off than the Award. [16] I sought this undertaking from the Applicant and it is attached at Annexure A to this decision. Conclusion [17] I have taken into account the material provided by the Applicant in support of its application and the matters set out in s.319(3) of the Act. I am satisfied the materials provided by the Applicant including the undertaking, when considered against the matters set out in s.319(3) of the Act, support the making of the order. [18] An Order to this effect will be issued separately. COMMISSIONER Printed by authority of the Commonwealth Government Printer <AE422453 PR770835> [2024] FWC 265 5 Annexure A