Fair Work Act 2009_

s 236 - Application for a majority support determination

Application for a majority support determination - ss 236 and 237 of the Fair Work Act 2009 - agreement sought to cover 'Marine Crew' only - whether group of employees fairly chosen - whether geographically, operationally or organisationally distinct - evidence of respondent preferred - group of employees not fairly chosen - unreasonable to make majority support determination - application dismissed.

[1] On 2 June 2014, Mr Bruce Jenkins (the 'applicant'), having nominated himself as an Employee Bargaining Representative (EBR) for the negotiation of a new Agreement for 'Marine Crew' employed by Captain Cook Cruises Pty Ltd (the 'respondent'), filed an application seeking a majority support determination, pursuant to s 236 of the Fair Work Act 2009 (the 'Act').

[2] A conciliation conference was held by the Commission, as presently constituted, on 26 June 2014. However, no agreement on the application could be reached and the matter was listed for hearing with directions issued accordingly.

[3] At the hearing, Mr Jenkins appeared for himself, Ms A Svetcova appeared in her capacity as an EBR and Mr J Fallone from the Australian Institute of Marine and Power Engineers (AIMPE) was granted limited intervention to make short submissions, having filed no evidence in the matter. Despite Mr Jenkins' objections, Mr D Mahendra of Counsel was granted permission to appear pursuant to s 596(2) of the Act. I should note that Mr Jenkins' pleas of being disadvantaged because he is not a lawyer 'ring rather hollow' considering his long history of representing himself in this Commission, other Courts and Tribunals. He also acknowledged he had studied law, but had not completed his degree. In any event, I was satisfied that, given the novel and largely untested waters covered by this application, that the matter would be dealt with more efficiently, if the respondent was granted permission to be represented by a lawyer.

[4] All of the employees are engaged by Captain Cook Cruises NSW Pty Ltd and Quay Cruises Pty Ltd t/as Matilda Cruises. For convenience, I shall hereinafter refer to the employer as the respondent or Captain Cook Cruises. The existing Agreement, the Matilda Cruises and Captain Cook Cruises Employee Collective Agreement 2009 [AC324844] (the 'Agreement') has a nominal expiry date of 14 June 2014. The preamble to the Agreement is expressed as follows:

'Captain Cook Cruises is a business directed at providing a variety of products and services that allow people to access the Harbour and its waterways in a variety of ways. We provide the opportunity for people to experience leisure, site seeing [sic], hospitality, educational and transport activities on Sydney's waterways.

Our vision is to create a company, which is respected by its staff, customers, competitors and owners. We recognise that we are in a service industry and to deliver our services, we rely on staff to provide high levels of customer service. We aim to create a working environment, which is energetic, innovative and ethical.'

[5] The classifications under the Agreement are recorded at cl 4.1 as follows:

[6] The applicant in these proceedings seeks to commence bargaining for a new agreement to cover the first seven classifications above, which he categorises as the 'Marine Crew'.

[7] The interpretation of the classifications is found at cl 4.11, as expressed below:

Means an employee being a skipper who is employed by the Employer under the classification of Master IV skipper who has the relevant qualification and experience required to perform the duties.

Means an employee being a skipper who is employed by the Employer under the classification of Master V skipper who has the relevant qualification and experience required to perform the duties.

Means an employee who is employed by the Employer under the classification of Coxswain who has the relevant qualification and experience required to perform the duties.

Means an employee who is employed by the Employer under the classification of Deckhand or General Purpose Hand who has the relevant qualification and experience required to perform the duties. Deckhands on Charter Vessels and Scheduled Cruises are required to work actively in the area of hospitality and to assist the Cruise Director when not required to perform duties as directed by the Master.

Means an employee who is employed by the Employer under the classification of Chef who has the relevant qualification and experience to perform the duties;

Means an employee who is employed by the Employer under the classification of Cook who has the relevant skills and experience required to perform the duties.

Means an employee who is employed by the Employer under the classification of Grill Cook who has the relevant skills and experience required to perform the duties.

Means an employee who is employed by the Employer under the classification of Galleyhand who has the relevant qualification and experience required to perform the duties.

Means an employee who is employed by the Employer under the classification of Cruise Director who has the relevant qualifications and experience required to perform the duties. At the discretion of management Cruise Directors will be required to act as an approved manager under the liquor license by Captain Cook Cruises Pty Ltd. As required and as necessary, a nominated Cruise Director will need to complete a Liquor Administration Board approved licensees' course.

Means an employee who is employed by the Employer under the classification of Steward / Waiter/ Waitress who has the relevant qualification and experience required to perform the duties.

Means an employee who is employed by the Employer under the classification of Commentator who has the relevant skills and experience required to perform the duties.

Means a vessel engaged wholly or principally within the limits of bays, harbours and rivers, which cruises for one or more days and provides accommodation and hotel style services for passengers and accommodation for crew.

[8] Written and oral evidence was given in the proceeding by:

• Ms Adriana Svecova, EBR, employed as a Master V by the respondent; and

• Mr Anthony Haworth, General Manager of the respondent.

[9] In his first written statement, Mr Jenkins explained that he is one of 57 'Marine Crew', which he defined as the Masters, Engineers and Deck Hands. He had appointed himself as an EBR in his capacity as an employee of the respondent. The total workforce of the respondent in Sydney was 250 employees.

[10] Mr Jenkins claimed that 47 of the 57 'Marine Crew' had sought to commence bargaining for a new agreement following the nominal expiry of the Agreement on 14 June 2014. 34 of the 'Marine Crew' employees had appointed Ms Svecova as their EBR. A further three 'Marine Crew' supported commencing bargaining with the respondent, but were reluctant to formally appoint a bargaining representative as they had concerns the respondent would take reprisals against them for doing so.

[11] Mr Jenkins deposed that he and Ms Svecova had had five meetings with Mr Haworth since 7 April 2014 seeking the agreement of the respondent to commence bargaining. At the last of these meetings on 26 May 2014, Mr Jenkins delivered a letter to Mr Haworth, which set out the intention of Ms Svecova and himself to commence bargaining with the respondent for a new enterprise agreement before 19 June 2014. He requested that the respondent send a Notice of Representational Rights to the employees. Mr Jenkins set out the perceived deficiencies of the existing enterprise agreement as follows:

'1. the 2009 Collective Agreement is what is known as an 'agreement-based transitional instrument' in force before the commencement of the Fair Work Act 2009, as such it cannot be changed or varied except to remove ambiguity.'

2. Amendments to employee pay, terms and conditions that have occurred since 2009 such as changes to rates or pay [sic], changes to allowances and amendment to increase provisions amount to purported variations of the old agreement.

3. There have been significant changes to legislation since the drafting of the old agreement as such the old agreement is in parts variously unclear, ineffective and or invalid.

4. The current employer entity Captain Cook Cruises Pty Ltd (ABN 1700827302) is not a party to the old collective agreement which listed employers are Tunsa Pty Ltd (ABN 63 001 364 487) formerly Captain Cook Cruises (NSW) Pty Ltd and Rinuba Pty Ltd (ABN 34 002 658 764) trading as Matilda Cruises, formerly Quay Cruises Pty Ltd trading as Matilda Cruises.'

The letter further set out the terms and conditions which were sought in the proposed agreement. These were:

'1. an improvement to pay as a base for a new agreement for the next four years;

a. what is sought is an increase on the offer made by CCC;

b. Marine Crew will compromise on its requested rates;

c. Those employees on a rate of pay higher than the minimum rate of pay in the new agreement should receive a rateable increase referable to their position and the agreed increase in the minimum rate of pay for that position.

2. Insertion in the new agreement some improvement to conditions;

a. What is in mind is minor variation to pay some allowance for very long days;

b. Perhaps other reasonable minor reasonable [sic] improvements to conditions.

a. An annual increase provision of 4% is sought to the four year term of the new enterprise agreement;

b. Marine Crew are minded to compromise at a rate less that, perhaps 3.25% to encourage a prompt agreement between the parties.

4. Insertion into the new agreement conditions we are now paid but are not documented;

a. Such as � hour travel time for different starting and finishing sites;

b. Variations to pay and conditions for HCF and offshore work;

c. Other conditions currently enjoyed that are not documented in the old agreement.

b. back pay for unpaid meal allowances is sought by Marine Crew;

c. Marine Crew are minded to compromise and limit the claim for back pay for unpaid meal allowance from 1 December 2013 to encourage a prompt agreement between the parties.

6. Provision for bargaining for a new 2018 agreement to commence on or before the date 3 months prior to the expiry date of the new agreement.'

He gave a deadline for the respondent to reply by 28 May 2014.

[12] Mr Jenkins said that in response, Mr Howarth circulated a memo to employees on 2 June 2014 in the following terms:

Some of our employees have been generating rumours and at times, inaccurate information about our employment arrangements. I want to use this opportunity to tell all of you the plain truth:

The current Certified Agreement has a nominal expiry date of 16th June 2014 but continues to apply until it is either terminated by one of the parties or replaced with another document.

We can advise that the company intends to stick with the current agreement rather than terminate it or replace it because we believe it offers fair working arrangements for both employee and employer.

As we've already indicated, the pay rise scheduled for April next year will be brought forward to the first pay week of January 2015.

We have just undertaken a competitive salary review of similar operators in Sydney Harbour and Captain Cook is paying either at or near the top of the market. Anyone who says we are paying low is quite frankly not telling the truth. And because we wish to ensure we have the best team working here, we will continue to make every effort to achieve wage levels that are at or near the top of the market.

The bottom line is this: we have a great business and a terrific team who make it both successful and a wonderful place to work. That's why we pay the wages that we do. I am not going to allow a small group of individuals to talk the place down and damage the business; simple as that.

If you have any questions at all in relation to this please don't hesitate to contact myself, Duc Tran, Henry Tsang, Tony Zrilic, David Garret or David Santarelli.'

[13] Mr Jenkins responded on the same day with his own memo, forwarded to all of the Sydney Vessels Crew. It set out that he was unaware of any inaccurate information circulated to the employees and noted that Mr Haworth had not particularised this allegation. It claimed that there was a possibility that the current Agreement's nominal expiry date was 14 June 2014, but he had not been able to establish, through his queries to the Commission and the Fair Work Ombudsman (FWO) whether the Agreement was registered. He relied on the reasons he had set out in the letter of 26 May 2014 (see para [11]) for a new enterprise agreement to be negotiated with 'Marine Crew' and denied that the respondent's rates of pay were 'at the top of the market.' The letter also expressed dissatisfaction with Mr Haworth's characterisation of himself and the other employees seeking to enter bargaining with the respondent as 'talking the place down and damaging the business' and said that the failure of the respondent to enter into bargaining was 'regrettable but not unexpected'. He expressed his intention to apply to the Commission for orders to commence bargaining.

[14] In a further written statement, Mr Jenkins claimed that there were some inaccuracies in relation to Mr Haworth's description of the respondent's operations. In particular, the listing of employees was out of date and included a number of employees no longer employed by the respondent. It did not appropriately identify employees by their relevant department. It incorrectly attempted to link 'Marine Crew' with hospitality and other staff.

[15] Mr Jenkins acknowledged that the nature of the respondent's business was in the provision of a customer experience or service, but emphasised that the 'Marine Crew's' responsibilities were for the navigation and operation of the vessels; their primary function was to ensure the safety of customers and the respondent's vessels. The 'Marine Crew' sought a separate enterprise agreement due to the separate and discrete circumstances of their duties.

[16] Mr Jenkins noted that the respondent did not recognise a group of employees known as 'Marine Crew', but did recognise the 'Vessel Crew', meaning the 'Marine Crew' with the addition of six employees who work as on-board commentators.

[17] Mr Jenkins denied that there was any basis for the respondent's claim that operating under four enterprise agreements (rather than three) would lead to a diminution in customer service, guest experience, efficiency or employee 'happiness'. He provided the example of the Quicksilver Connections AMOU & AIMPE Marine Agreement 2014-2018 [AE407354] (the 'Quicksilver Agreement') as an Agreement covering a business of a similar size which had a separate enterprise agreement for its 'Marine Crew'.

[18] Mr Jenkins said that the 'Marine Crew' had made a claim in relation to a pay increase and that the respondent had made a counter-offer, which was rejected by the 'Marine Crew' and was subsequently withdrawn by the respondent. He noted that the respondent had made offers to individual 'Marine Crew' employees to vary the terms of their employment and offer a levy for work performed for Harbour City Ferries and for working on offshore services, such as whale-watching.

[19] Mr Jenkins provided an indicative organisational chart as follows, which he claimed demonstrated the distinction between the 'Marine Crew' and the hospitality crew:

[20] In cross examination, Mr Jenkins was shown an email sent on 19 November 2013, which he agreed was effectively his job application. It was expressed as follows:

I write in response to your advertisement seeking skippers for Captain Cook Cruises. I hold Master

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