Fair Work Act 2009

s 394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdictional objection - was applicant covered by a modern award - principal purpose test applied - primary purpose of applicant's role was to operate and maintain vessels for charter business - applicant was covered by Marine Tourism and Charter Vessels Award 2020 - applicant was protected from unfair dismissal - remaining matters to be programmed for determination.

• [1] Mr Adam Garnaut was employed by Boundary Lane Pty Ltd as a Vessel Master V Skipper from Monday 15 May 2023 to when he was dismissed on Friday 10 January 2025. Mr Garnaut has applied to the Commission alleging he was unfairly dismissed.

• [2] Boundary Lane says that Mr Garnaut was not protected from unfair dismissal under s 382 of the Fair Work Act 2009 (Cth).

• [3] The parties agree that Mr Garnaut did earn more than the high-income threshold and he was not covered by an enterprise agreement. Boundary Lane say that Mr Garnaut was not covered by a modern award. However, Mr Garnaut contends that at the time of his dismissal, he was covered by the Marine Tourism and Charter Vessels Award 2020.

• [4] It is uncontroversial that to establish whether Mr Garnaut was protected from unfair dismissal pursuant to s 382 of the Act, I must determine:

• what was Mr Garnaut's role at the time of his dismissal; and

• did his role fall under the coverage of the MTCV Award.

• [5] I conducted a hearing on Thursday 1 May 2025. Mr Garnaut gave evidence on his behalf. I gave permission for Boundary Lane to be represented by Mr Luke Scandrett of Pinsent Masons. Mr Peter Medich, Managing Director for Boundary Lane, gave evidence for Boundary Lane.

• [6] Having considered the relevant evidence and submissions of the parties, I find that Mr Garnaut was covered by the MTCV Award and was thus protected from unfair dismissal under s 382.

• [8] Boundary Lane is the employing entity for the Boundary Lane group. Boundary Lane Hospitality Pty Ltd operates as the operational vehicle for Boundary Lane group's hospitality and marine tourism activities. Boundary Lane Hospitality Pty Ltd was established with the purpose of engaging in the tourism industry.[1]

• [9] Mr Medich's uncontested evidence is that in or about January 2023, Boundary Lane acquired a new 'Belize 66 day bridge motor yacht' (Vessel). This was with the intention of commencing premium day-charter experiences in Western Australia.[2]

• [10] Mr Medich did not have the requisite knowledge of the marine tourism industry and so sought to employ appropriately experienced personnel.[3]

• [11] Mr Garnaut was employed on or about Friday 12 May 2023. Over the course of Mr Garnaut's employment, there were three employment contracts. The first two employment contracts referred to Mr Garnaut's employment being covered by the MCTV Award. The third employment contract did not.

• [12] Mr Garnaut's employment contracts specify the same responsibilities, which can be summarised as follows:

• Vessel operations: operate and navigate boats; monitor and maintain vessel systems; ensure compliance with relevant safety, emergency and maritime regulations and protocols; conduct regular maintenance inspections of the vessel and its equipment.

• Crew management: lead and manage a team of crew members; manage team rosters and timesheets; train crew members; promote effective teamwork and communication.

• Passenger safety and customer service: ensure the safety and well-being of passengers; provide exceptional customer services; communicate safety instructions and procedure to passengers.

• Navigation and communication: utilise navigational tools and technologies to navigate the vessel; plan safe routes; maintain regular communication with port authorities; other vessels and shore-based personnel.

• Emergency response: be prepared to respond effectively to emergencies, including medical incidents, fires and equipment failures; implement emergency procedures and coordinate with appropriate authorities as necessary.

• Detailing, cleaning and asset protection: ensure the vessel's interior and exterior is clean and tidy; coordinate with cleaning staff and third-party contractors; inspect and maintain onboard assets; train crew members on proper cleaning; manage cleaning supplies and equipment inventory.

• Premium hospitality services to guests: provide a high level of hospitality services to guests, including food and meal services.

• Finance and administration of operations: assist in managing the financial aspects of vessel operations, including budgeting, expense tracking and financial reporting; monitor inventories; coordinate with suppliers; complete weekly payroll approvals for boat staff; assist in recruitment and hiring processes for crew members; onboard and offboard crew members.

• [13] Mr Medich's evidence regarding Mr Garnaut's duties is similar to the responsibilities outlined in Mr Garnaut's employment contracts,[4] though his evidence emphasises the autonomy of Mr Garnaut's role.[5]

• [14] Mr Garnaut was paid $180,000.00 per annum. Mr Medich's evidence regarding Mr Garnaut's duties was not challenged and I accept his evidence. I note that where Mr Medich's written evidence gave views on the interpretation of the MTCV Award, I have treated such views as submissions.

• [15] On Wednesday 3 May 2023, prior to Mr Garnaut commencing the role, Mr Garnaut sent the following email to Mr Medich:[6]

The role that we discussed this morning requires a very specific person to fulfil the requirements and I know that person is me.

I can see that the role will evolve over time and understand there will be other things not mentioned above that will be required of myself.

As mentioned, I'm not just a qualified skipper. I have the management and hospitality experience needed to make this new venture a success, giving you and your guests a pure walk-on walk-off services. I have many things to add value.

• [16] Mr Medich's evidence is that during Mr Garnaut's employment he employed other individuals under the MTCV Award under the Master V classification. Mr Medich says that these individuals were not required to perform the broader operational and management duties that Mr Garnaut undertook; did not hold senior or authoritative positions within the business; reported directly to Mr Garnaut; and earned significantly less than Mr Garnaut.[7]

• [17] Mr Medich also says that over the course of Mr Garnaut's employment he undertook a total of 68 paid charter operations, with all but one lasting no longer than one day, as well as approximately 50 additional days of vessel-related activity. The remainder of the time (being 73% of Mr Garnaut's employment), Mr Garnaut was performing broader operational and managerial functions.[8] Mr Garnaut contested this, stating that he had completed over 100 days of paid and private charter operations, including multiple overnight charters.

• [18] Mr Medich gave further evidence that Mr Garnaut did not undertake paid charters for the first six months of his employed, though did not explain why. The charters undertaken by Mr Garnaut took place between Friday 1 December 2023 to Friday 10 January 2025.

• [19] Mr Garnaut makes the following submissions:

(a) His job title of Vessel Master V Skipper matches the classification of Master V in the MTCV Award.

(b) The duties for Master V under the MTCV Award are included in Mr Garnaut's position as Vessel Master V Skipper.

(c) He was not in a senior managerial position; his duties are set out within the job description in his contract.

• [20] Mr Garnaut also submitted that his first two contracts specified that he was covered by the MTCV Award. However, it is well established that this is insufficient to confer modern award coverage on an employee.

• [21] Boundary Lane acknowledges that the duties for a Master V under the MTCV Award form part of Mr Garnaut's position description and that he performed those award duties as part of his employment. However, Boundary Lane says that Mr Garnaut performed duties beyond the Master V classification. These duties included:

(d) recruitment, onboarding and management of vessel crew;

(e) coordination with external contractors and suppliers, including maintenance, compliance and catering services;

(f) oversight of operational systems, including rostering, charter scheduling, and guest logistics; and

(g) participation in strategic planning, business development, and client relationship management.

• [22] Boundary Lane says the above list were Mr Garnaut's 'primary duties' and constituted the principal purpose of Mr Garnaut's employment. Boundary relies on the decision of Feutrill J in Roebuck v Shopping Centres Australasia Property Group Re Limited, where he held that:

if significant or substantive duties and responsibilities described in the duty statement fell outside the duties and responsibilities of any classification described in the award, that could indicate that the principal purpose of the position was not within any classification in the award.[9]

• [23] Boundary Lane also submits that the duties under the MTCV Award (i.e. navigating a vessel) were not possible for Mr Garnaut to undertake until his 'primary duties' had been undertaken.

• [24] Further, Boundary Lane contends that Mr Garnaut's role was a hybrid operational-management and captain position, encompassing both seafaring responsibilities and broader business functions. This was reflected in Mr Garnaut's remuneration, which was far in excess of the award rate for a vessel master.

• [25] Section 382 of the Act provides:

When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

• [26] It is common ground that Mr Garnaut has completed the minimum employment period, is not covered by an enterprise agreement and earned more than the high-income threshold.

• [27] In determining whether a modern award covers an employee's employment the Commission applies a 'principal purpose test'. The Full Bench in Zheng v Poten & Partners (Australia) Pty Ltd,[10] summarised the test at [47] as follows:

It remains necessary to consider what the application of the "principal purpose" test requires. As was stated in [Carpenter v Corona Manufacturing Pty Ltd [2002] AIRC 1562; (2002) 122 IR 387], the test requires an examination of the nature of the work of the employee in question and the circumstances in which the employee is employed to do the work for the purpose of ascertaining the principal purpose for which the employee is employed. This is a question of fact. Once that is done, the principal purpose as identified must be compared to the classification descriptor in order to determine whether it falls within the scope of that descriptor. Thus, in [Brand v APIR Systems Ltd (unreported, AIRC (FB), PR938031, 16 September 2003)] the approach taken by the member at first instance and endorsed by the Full Bench on appeal was to identify the principal purpose of the relevant employee's employment as being that of "the development of the business of the company including business planning marketing and sales planning manager", and then to determine that this did not fit within the Level 4 classification descriptor.

• [28] Further, in determining award coverage, it is the employee's duties that are significant, rather than their title. Deputy President Gostencnik (as he was then) relevantly noted in Kaufmann v Jones Lang LaSalle (Vic) Pty Ltd[11] at [45]:

I agree with the Applicant's submission that put simply, the principal purpose of the Applicant's position was to sell real estate. Some of the transactions involved were of higher value and greater complexity than those involved in, say a suburban residential real estate agency, but the true nature of the work being performed is much the same. The Applicant had little role in the strategy and management of the Respondent. He had no direct reports. His title, of Regional Director, was effectively a rank or accolade accorded by the Respondent, but the question of award coverage is not determined by the person's title - it is the duties performed that will be of significance.

• [29] This reasoning was endorsed by the Full Bench in BHP Coal Pty Ltd v CFMMEU.[12]

• [30] Having considered the evidence - which was largely provided by Boundary Lane - I find that the primary purpose of Mr Garnaut's role was to operate and maintain vessels for Boundary Lane's charter business. This role included providing input into the charter business; hospitality services; management of crew; and ensuring the vessel complied with all relevant regulatory requirements. Even accepting Mr Medich's evidence regarding the breakdown of Mr Garnaut's duties and what time was spent on them, I find that Mr Garnaut's time and duties were generally in service of the above principal purpose.

• [31] The MTCV Award covers employers throughout Australia engaged in the marine tourism and charter vessels industry and their employees in specified classifications.

• [32] The 'marine tourism and charter vessels industry' is defined as:[13]

...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.

• [33] Employees engaged as a Master V under the Award will:[14]

• Supervise the crew and entertain passengers; and

• Perform routine and preventative maintenance as required.

• [34] The parties agree that the MTCV Award covers Boundary Lane and that the vessel Mr Garnaut operated was of class V status. The issue is whether Mr Garnaut's role was covered by the MTCV Award.

• [35] I accept Boundary Lane's submission that Mr Garnaut performed duties that fell outside of the Master V duties, such as the duties relating to finance, administration and overall business strategy. However, I find that the principal purpose of Mr Garnaut's role fell squarely within the duties of the Master V classification.

• [36] Though not explicitly articulated, Boundary Lane seemed to contend that because Mr Garnaut's duties in relation to safety, compliance and maintenance required action before he stepped onto the vessel to navigate it, that this was outside of the Master V classification.

• [37] I do not accept this proposition. Duties of the Master V classification include ensuring the safe operation of the vessel as well as routine and preventative maintenance. The safe operation of a vessel does not start with when the captain or crew step onto the vessel. The marine tourism and charter vessel industry is highly regulated for good reason, which means that ongoing measures must be taken before any charter to ensure safe operation. Routine and preventative maintenance will also be undertaken while the vessel is not in operation.

• [38] There may be an upper limit to regulatory, compliance and maintenance duties that would bring a role outside the Master V classification. However, I find that Mr Garnaut's role as a Vessel Master V Skipper has not reached that limit.

• [39] Accordingly, I find that Mr Garnaut was covered by the MTCV Award at the time of his dismissal and is protected from unfair dismissal. Mr Garnaut's unfair dismissal application will now be programmed to determine the remaining matters.

Luke Scandrett of Pinsent Masons for the Respondent.

[1] Witness Statement of Peter Medich, Digital Court Book (DCB) 144 [5]-[6].

[5] Second Witness Statement of Peter Medich, 30 April 2025, [4].

[6] Witness Statement of Peter Medich, Annexure A, DCB (n 1) 151-2.

[9] [2024] FCA 503 [69].

[10] [2021] FWCFB 3478.

[11] [2017] FWC 2623.

[12] [2021] FWCFC 197 [31].

[13] Marine Tourism and Charter Vessels Award 2020 cl 4.2.

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