Fair Work Act 2009

s.240 - Application to deal with a bargaining dispute

Alleged dispute concerning coverage, hours of work & shift work status - Determination of dispute insofar as it relates to work - Consideration of what constitutes at work and employees being at work for the purposes of entitlement to be paid.

[1] This Decision concerns an application by the Australian Maritime Officers' Union (AMOU) under s. 240 of the Fair Work Act 2009 seeking that the Commission deal with a bargaining dispute. The dispute is in relation to negotiations with Remick Pty Ltd t/a Pro Dive Cairns (Pro Dive) for an enterprise agreement to replace the Pro Dive Cairns Enterprise Agreement 2014 (the current Agreement). The Construction, Forestry, Maritime, Mining and Energy Union - the Maritime Union of Australia Division (CFMMEU) sought and was granted permission to be heard in relation to the dispute.

[2] Pro Dive is a Professional Association of Diving Instructors centre and live aboard dive operator conducting PADI training and live aboard dive trips to the Great Barrier Reef. The Dive Centre is located in Cairns and comprises class rooms and two pools in which dive training is undertaken. In the Form F11 Application filed by the AMOU the dispute is said to relate to the following matters:

• The Company's position that employees are covered by the Professional Diving Industry (Recreational) Award 2010 (the Diving Award) rather than the Marine Tourism and Charter Vessels Award 2010 (the Marine Tourism Award);

• Hours of work; and

• Shift worker status.

[3] A number of conferences of the parties were conducted. It was determined that the dispute in relation to hours of work would be dealt with on the basis that it is a significant impediment to the progress of negotiations and that the other matters in dispute would be more appropriately resolved at the time the application for approval of any replacement agreement was considered by the Commission.

[4] The hours of work dispute relates to whether certain activities undertaken by employees, particularly while on overnight diving trips, are "work" for which employees are required to be remunerated and for the purposes of the application of the better off overall test (BOOT) to any replacement enterprise agreement which may be made. The hours of work dispute does not relate to the application of the current Agreement or whether employees are being paid in accordance with that Agreement.

[5] A hearing was conducted in Brisbane with a video link to Cairns. Evidence for the AMOU was given by:

• Mr Arek Mszyca - Master;[1]

• Mr Raphael Redel - Master;[2]

[6] Mr Redel was unable to attend the hearing due to work commitments. A statement and a statement replying to Mr Lim's statement was tendered without objection from the Respondent. Evidence was given for the CFMMEU by Mr Niki McGuire[3] and Ms Stephanie Guillet[4] who are employed by Pro Dive as Professional Diving Instructors. Evidence for Pro Dive was given by Mr Paul Lim, General Manager.[5]

[7] Mr Mszyca's evidence was that Masters work in five week cycles. Each cycle consists of maintenance days and six overnight trips (3 days/2 nights). Masters are scheduled to work as follows:

[8] Mr Mszyca appended Dive Trip Schedules to his witness statement said to evidence that on Day 1 his shift length was 15 hours 13 minutes including two hours of upaid meal breaks so that 13 hours and 15 minutes was worked. On day 2 the shift length was 14 hours and 15 minutes with 2 hours and 45 minutes of unpaid breaks and on day 3, the shift length was 7 hours and 30 minutes with 1 hour of unpaid lunch break. Hours recorded by Mr Mszyca on days 1 and 2 include washing breakfast, lunch and dinner dishes and acting as a look out for dives. Mr Mszyca said that this relates to a trip in good weather conditions with a full crew and no unexpected difficulties or delays. If the weather is bad the hours of work increase as it takes significantly longer to get to a destination and longer to secure the boat in a safe manner.

[9] In his statement in reply to the evidence of Mr Lim, Mr Mszyca said that the schedule produced by Mr Lim is not complete and does not include moving the boat to the second dive site on day 1 and moving the boat to the last dive site on day 3 with each move requiring 5 crew and taking approximately 30 minutes. Further, Mr Lim's schedule does not allow for training, emergency drills and engineering duties. According to Mr Mszyca the meal breaks on day 1 and 2 are not part of the Masters' dispute but may be cut short for reasons including the fact that most of the time there is not enough room to accommodate the crew at tables during meals. According to Mr Mszyca, most of the crew eat their meals in the wheelhouse or outside on the top deck with plates on their knees or on the floor. Some of the crew prefer to cut their meal breaks shorter, finish the clean up and use the remaining period of the break for resting in their cabin. This increases the quality of rest time. Mr Mszyca also said that this works better from a customer point of view because customers would not otherwise have tables cleaned for an hour. On day 3 of the trip Masters eat their lunch while driving the vessel.

[10] Mr Mszyca also gave evidence about Masters undertaking additional tasks such as conducting and debriefing emergency drills, training new crew, scheduled maintenance and unforeseen repairs. There is also a maintenance schedule indicating jobs Pro Dive requires to be undertaken at sea every four weeks including cleaning propellers and shafts and washing the hull of the boat. In addition Masters are required to service the vessels' generators every 250 hours. Mr Mszyca said that allocating watches to other staff can be difficult when they are inexperienced which is often the case.

[11] The requirement for a night watch was imposed by AMSA in early 2019. If the wind on Arlington Reef is forecast to exceed 25 knots the Master must carry out a night watch. It is not always possible to predict a strong wind in advance and if wind intensifies in the evening it is harder to set a night watch as a crew member has to be released from duties the following day resulting in everyone sharing an additional workload. Based on the Willy Weather website, in May 2019 the wind exceeded 25 knots on 21 days at Arlington Reef.

[12] Mr Redel gave evidence about a specific trip he undertook from 27 to 29 April 2019 and attached Vessel log books, dive log sheets and BOM observations for Arlington Reef to his witness statement. As previously stated, Mr Redel was unable to attend the hearing and a statement of Mr Redel, and a statement in reply to Mr Lim's statement, were tendered without objection from the Respondent. There were 28 passengers with two joining the vessel late. According to Mr Redel's evidence day 1 of the three day trip commenced at 5.45 am at the Pro Dive Cairns Training Centre transferring crew and vehicle to the marina. Mr Redel undertook various activities including Dive 1 Lookout before having a lunch break from 12.30 pm until 12.45 pm when he was required to wash dishes and clean up after lunch and help crew with deciding how to run classes.

[13] Mr Redel then had a further break from 1.20 pm to 2.00 pm before performing afternoon duties including look out for Dive 3 and moving the vessel to another mooring. At 5.45 pm Mr Redel assisted with dinner service and had a break to eat dinner from 6.15 pm to 6.30 pm before assisting with dinner clean up from 6.30 pm to 7.05 pm. Mr Redel undertook night dive look out duties and a range of other tasks and completed his day at 9.00 pm. This was a working day of 13 hours and 50 minutes duration.

[14] Work on Day 2 commenced for Mr Redel at 1.30 am on 28 April 2019 when he was required to fix an air-conditioning fitting after an alarm went off. This task was completed at 2.15 am and Mr Redel started work again at 6.45 am by contacting management of Pro Dive asking for additional crew to assist due to weather forecast. This request was not granted. Mr Redel had a break for breakfast from 8.45 am to 8.55 am before cleaning breakfast dishes and then departing a mooring. Mr Redel had a break from 10.20 to 10.45 am and then was required to transfer passengers and their equipment from another vessel before having a break from 1.45 pm to 2.00 pm before departing for another mooring. After completing tasks Mr Redel had a break from 3.15 pm to 4.00 pm and then spent time filling tanks and looking after passengers before having a further break from 4.30 pm to 6.30 pm during which he ate dinner. Mr Redel's second day also ended at 9.00 pm - a working day of 12 hours and 10 minutes.

[15] On day 3 Mr Redel was required to keep a watch from 12.00 midnight until 3.00 am due to gusting winds at 35 knots. At 6.50 am Mr Redel undertook engine pre-start checks and performed other duties before breaking to have breakfast from 8.25 am to 8.45 am. Mr Redel had a further break from 11.00 am to 11.30 am and finished his day at 5.00 pm, working 12 hours and 20 minutes. In his statement in reply to Mr Lim's evidence that Mr Redel chose to shorten his meal breaks and that this was not required by Pro Dive, Mr Redel stated that his evidence demonstrates the complexity of Pro Dive's operations; it was important to keep a schedule to ensure the day finishes for everyone on time; and that washing dishes in the time he was supposed to have a break was not a choice, but was absolutely necessary to run the ship's activities on time.

[16] Mr Redel also disagreed with Mr Lim's evidence that it is within his discretion to allocate overnight watchkeeping to another employee. Mr Redel stated that the gusting conditions on day 3 were unforeseen and he was not able to prepare any other crew member for the task after midnight since everyone had worked all day as well.

[17] The AMOU contends that Pro Dive expect Masters to follow a schedule that does not accurately reflect the hours of work and does not include accurate breaks, time for drills, maintenance, night watches due to bad weather or moving the vessel to new dive sites. The AMOU points to Mr Lim's concession that he has not been on a voyage for six months and asserts that this means that he cannot have a way of knowing whether crews take their breaks. Mr Lim also conceded that his schedule was created two years ago and does not include moving the vessel to new locations. Mr Lim further conceded that while his schedule states that the Master is "off" from Dive 1 to Dive 3 (between 6.45 am and 5.30 pm) the Master had signed dive logs at 8.30 am, 12.00 midday and 4.15 pm. The Master also moved the vessel to a new dive site from 9.30 am to 10.15 am and 2.00 pm to 2.45 pm. This meant that the Master was interrupted 5 times during his 10 hour rest period after working 20 hours and 15 minutes the day before.

[18] The AMOU submits that while only one person is required in the saloon at meal times the crew eat their meals at different locations around the vessel and are expected to interact with passengers during this time. Mr Lim also stated that he would expect a crew member on a break to assist a passenger.

[19] The AMOU submits that the Commission should find that the activities described by employee witnesses in their evidence including that following activities are "work":

• Time spent talking to passengers while on a break;

• Time spent talking to crew about drills and operations;

• Time spent eating while driving a vessel;

• Time spent signing dive logs and moving the vessel while not on a dive watch.

[20] Mr McGuire gave evidence about his roster and working arrangements. Mr McGuire regularly works a seven day roster pattern consisting of two days working at Pro Dive's Cairns premises doing theory and pool work with clients followed by three days/two nights on overnight reef trips followed by a two day break. The first two days of the cycle are pool days. The course has a standard program and Mr McGuire's hours for those days are 7.30 am to 6.00 pm with a one hour lunch break totalling 9 hours and 30 minutes per day. The one hour lunch break can be taken up due to slow performance of students, chasing up documentation or catching up on students that attended a medical in the morning. On the second day of the course, the last session is an exam which starts at 5.00 pm and finishes at 5.30 pm. Mr McGuire drives the customers to their accommodation, returns with the vehicle, processes final exam results and generally leaves by 6.00 pm. At 7.00 pm while at home, Mr McGuire is on call regarding changes to bus pickups and arrangements for the next day and is also required to send messages and call other staff in relation to these matters. The period of time spent on these activities is between 15 and 20 minutes.

[21] The second part of the roster is the three day/two night boat trip. Mr McGuire tendered audits of his working hours undertaken at the request of Pro Dive. That audit was used by Pro Dive to generate a Dive Trip Schedule. Two versions were circulated. Mr McGuire states that neither version accurately reflected tasks and hours for Dive Instructors and this caused him to annotate the schedule to show his actual working hours. The annotated schedule tendered by Mr McGuire shows the following:

• On 50% of occasions Mr McGuire commences the first day of the three day/two night trip at 5.15 am to pick up passengers;

• Often the vessel does not leave at the appointed time due to a number of factors;

• During travel to the reef on day one dive instructors are on alternating watches and in calm weather get a half hour break but no break in rough weather;

• Prior to the afternoon dive instructors spend 30 minutes or more explaining the program to customers; helping them with paper work; signing them up for the course; and briefing them on skills and compass use which requires the dive instructors to cut short their lunch break to 30 minutes or less, which occurs on about 95% of trips;

• On the evenings of the three day/two night trip a normal dinner break of one hour is scheduled but crew cut this short by up to 30 minutes to clean up early and commence the night dive early to allow the crew to finish early;

• Even when crew finish early it is not uncommon for passengers to knock on their cabin doors asking for extra blankets or to report air-conditioning problems or similar;

• If winds are blowing above 25 knots crew are required to perform night watch which involves releasing an instructor from normal duties so they can sleep prior to night shift and puts added pressure on the remaining crew and the skipper who also shares night watch duties;

• On the morning of day three crew only ever get a 30 minute breakfast break;

• During the lunch period on day three crew eat their meal but also conduct debriefing and discuss drills and trip issues;

• On the return trip to Cairns on the afternoon of Day 3 there are alternating watches and because most of the customers are resting or sleeping and there is little administrative work to be done Mr McGuire commonly gets an actual 30 minute break when he is not on watch which could be said to be his lunch break.

[22] Mr McGuire said that across the three days he is required to work at all times other than during actual break periods described in his evidence. In addition to the activities described elsewhere in his evidence, Mr McGuire is assisting customers with completing certification documents, undertaking knowledge reviews with advanced students, collecting information from customers for disembarkation such as hotel drops offs and organising bus lists, undertaking advanced elective dives, open water course make up dives and snorkelling, and maintenance and preparation including work. Exhibit NM5 to Mr McGuire's statement was said to show standard total working hours of around 55 hours per week reflecting his ordinary hours involving no break on Day 1, a short breakfast on Day 3 and a combined lunch and non-watch time on day 3 of 45 minutes. Mr McGuire also said that if the issues outlined in his statement are taken into account, his assessment is that his hours commonly fluctuate between 54 and 56 hours per week. Ms Guillet's evidence supported that of Mr McGuire and provided a similar breakdown of her working hours while working the five day roster pattern including the three day trip.

[23] The CFMMEU contended that due to the volume and range of responsibilities associated with their work, Dive Instructors are often prevented from taking their scheduled meal breaks and are required to work beyond the hours formally provided for in the work schedule. The CFMMEU also contended that employees often undertake remunerable work during their scheduled meal breaks as follows:

• During designated meal breaks times on the first two (pool) days of the normal permanent employee roster;

• From home after normal working hours on the evening of day two of the schedule;

• From the Respondent's premises or from their home or on the morning of day three of the schedule when they commence work by taking responsibility for the Respondent's vehicle in order to collect customers at times designated by the Respondent;

• During periods while the vessel is underway, when they remain on watch (notwithstanding formally being allowed a break from watches) or undertaking preparations for upcoming dives;

• During designated meal periods while on the vessel, when they are required to remain on watch for safety purposes, or on call by eating in the vicinity of customers to enable them to assist customers when required, or to undertake work not able to be completed outside the designated meal times;

• During the night while on the vessel when required by poor weather;

• By returning to work to complete administrative duties on non-work days or during scheduled non-work time during their following roster period.

[24] The CFMMEU submitted that the Respondent had not completed a review of the actual working times for dive instructors and further, that there is no schedule reflecting their actual working times. The CFMMEU further submitted that an employer is legally obliged to pay an employee in accordance with the term of their contract for services reasonably demanded under it.[6] It was further submitted that establishing an entitlement to payment under an employment contract arises upon a reasonable direction made to an employee to make themselves ready and available to provide their services as and when necessary.[7]

[25] Reference was also made to the Dive Instructor contract in evidence before the Commission. The contract identifies Mr Maguire's position as a Dive Instructor which requires him to, "represent the company in a positive and mindful way so as to help further the Company's mission and goal...always conduct [himself] in a courteous, friendly and professional manner to everyone [you] meet while representing Pro Dive Cairns...Carry out other duties as directed by management" and be a driver of Company vehicles. Given the duties referred to in the contract of employment and the direction for employees to remain available remain available without notice to perform those duties, it is submitted that employees are to be remunerated for service during those periods.

[26] Reference was also made to the terms of the relevant modern Award and the current Agreement in relation to what constitutes 'service' and how certain types of service are to be remunerated. The Diving Industry Award which covers the Respondent's Dive Instructor employees:

• Requires full time employees to be paid an annual wage or minimum weekly rate based on 38 ordinary hours per week;[8]

• Allows ordinary hours to be worked on any day of the week up to a maximum of 12 hours on any one day;[9]

• Requires all time worked on any one day in excess of 12 hours to be paid as overtime;[10]

• Requires all employees "who are called back to work after the usual finishing time" to be "paid for a minimum of four hours work at overtime rates";[11]

• Entitles employees to "an unpaid meal break" and a "10 minute paid rest break"[12]

[27] In addition, reference was also made to the current Agreement_,_ which is said to recognise a similar distinction between an unpaid 30 minute meal break and a 10 minute rest pause. Further, Clause 2.1.1 of the Agreement maintains the requirement for flexibility of employees given the nature of their work, relevantly providing, "The parties acknowledge that the provision of recreational diving services may be subject to conditions out of their control, including weather, diving conditions, customer demands and vessel operations." It was submitted that both the Award and Agreement provide for remuneration for certain categories of work.

[28] In relation to the distinction between a meal break, for which no entitlement to payment accumulates and other types of breaks where the employee should receive remuneration for service during their break the CFMMEU referred to the following passage in the Decision of the Federal Court in Durnford v Allen Taylor and Company Limited,[13] which it submitted exhibited commensurate characteristics that are consistent with the Respondent's workplaces:

"...on many shifts, the men had the opportunity to sit down and eat an uninterrupted meal. Indeed, it was common for the men to have lengthy period of time during which they had no pressing duties, when they were able to eat a leisurely meal and possibly read a newspaper or a book. There seems to have been a considerable variation in the extent of the work required to be done from one shift to another.

However, it is equally clear that there was never a defined break, during which the attendants were free to do as they wished. Although they always had some opportunity to eat lunch, often at a leisurely pace, they never had a "lunch break"; a period of time during which they were free to leave the boiler room and chat to other workers or even leave the premises altogether on business of their own. Exemplifying the principle 'They also serve who only stand and wait', they were always on duty."

[29] The CFMMEU also cited the decision of the Federal Court in Duncan's Holdings Ltd v Desmond Keith Cross & Ors[14] which considered Award clauses regarding breaks which the CFMMEU submits are consistent with clauses in the Diving Award:

"Where cl.30(h)(i) applies [for "non-continuous shift work one hour or such other time as may be agreed upon shall be allowed for an unpaid lunch"], the employee is entitled to a one hour, unpaid "lunch break". Where cl.30(h)(ii) applies [for continuous shift work "a 20 minutes paid crib break shall be allowed to shifts workers each shift which be counted as time worked"], a one hour meal break is not provided, merely a twenty minute crib break. The difference between the two breaks extends beyond duration. A "lunch break" is a period of time during which employee are free, not only to eat a meal, but to leave their immediate workplace - in this case the boiler room - and socialise with other workers elsewhere in the establishment, or even leave the employer's premises altogether on business of their own. A "crib break", in contrast, is a period during which the employee may "down tools" and eat but must remain in the immediate workplace and available in case of any emergency...Clause 30(h)(i) provides for an unpaid one hour lunch break. No doubt that is because the employee is then off-duty. In contrast, the crib break provided by cl30(d)(ii) is paid time; that is because the employee remains on duty throughout."

[30] Further, the CFMMEU cited the decision of the Australian Industrial Relations Commission in Construction, Forestry, Mining and Energy Union v Cooks Construction Pty Ltd as authority for the proposition that to stand and wait is remunerable service.[15] The CFMMEU submitted that what may be regarded as service is largely contingent on what an employee is required to do to fulfil his or her obligations under a contract of employment which includes "those who stand and wait". According to the CFMMEU these principles are relevant in the present case where Dive Instructors are required to be living beside customers for days at a time, with the nature of their work being beyond their immediate control.

[31] Reference was made to the evidence of Mr McGuire and Ms Guillet about allotted lunch breaks being shortened to accommodate the needs of students. It was also submitted that Mr Lim confirmed the same working hours and did not contest Mr McGuire's evidence that he was required to work until 6:00pm. The CFMMEU further submitted that Pro Dive did not assert that any of the tasks undertaken by the Dive Instructors during the scheduled lunch period were not remunerable work or that there were directions provided about not working through the scheduled lunch break. Instead, the evidence establishes that employees take their lunch breaks subject to the roster and customer demands. As the Dive Instructors provide services to students during the allotted lunch period, it therefore must be attributed for the purposes of calculating their remunerable hours of work.

[32] The CFMMEU submitted that Dive Instructors take their meals in areas of the vessel to supervise passengers and pointed to Mr Maguire's evidence that directions were provided to do this as a matter of customer safety and to give general assistance to customers. The evidence of Mr Maguire and Ms Guillet also indicated that there was not enough time during the standard schedule to undertake a range of tasks, whilst managing variations in weather, vessel movements, and passenger requirements, recording keeping obligations, safety drills, briefing/debriefing obligations and trip planning. Further to this, Mr Maguire and Ms Guillet said they were required to work at all times when on the vessel, were not permitted to retreat to their bunks and were required to have their meals in the same area as passengers in order to attend to the needs. It was submitted that this form of work was undertaken for the commercial benefit of the Respondent and under its direction.

[33] The evidence of Mr Lim that Mr McGuire may elect to shorten his meal breaks but was not required by the Respondent to do so, was also said to be inconsistent with Mr Lim's evidence that the Dive Instructors were directed to eat their meals where the passengers eat. It was also submitted that Mr Lim conceded that they were "on call". The CFMMEU contends that the evidence establishes that both on shore and on-vessel meal breaks were regularly cut short by Dive Instructors being required to complete general duties and provide assistance to passengers when required.

[34] The CFMMEU also submitted that the Respondent did not contest the evidence that Mr Maguire and other instructors work on the vessel before each departure in order to organise the final customer collection process for the following morning and that this work takes approximately 15-30 minutes. Similarly, the pickup service offered to customers by the Respondent was implemented to collect customers prior to their dive time. While the Dive Instructors recorded starting time is 5:45am the evidence is that customers are collected from 5:40am onwards and that as a result, Dive Instructors commence their duties prior to the scheduled work time. Further to this, Dive Instructors are required to be present at the site to unlock the premises, obtain bus keys, undertake a pre check on the bus, load the bus and leave the premises in time to meet the first designated point and time required by the Respondent. It is submitted that this is work for which they should be remunerated.

[35] In conclusion, the CFMMEU submitted as a result of explicit and implicit directions given by the Respondent, Dive Instructors are improperly remunerated for the work that they undertake. All tasks set out the witness statements and submissions are work and employees should be remunerated accordingly for undertaking those tasks.

[36] Mr Lim said in his evidence that Pro Dive operates 3 purpose-built dive boats that take customers on 3-day, 2- night live-a-board dive trips over 6 scheduled departures per week. Typical crewing on each of these vessels is:

• 1 Master

• 1 Dive Supervisor

• 1 Cook

• 3 Dive Instructors

[37] The level of crewing is dependent on passenger numbers, courses conducted and

weather. By far the most popular course option for customers is the PADI open water course, where participants are learning to dive, and which is conducted 6 times per week to coincide with vessel departures. Typically, this involves 2 days training at the dive centre followed by a 3-day, 2-night dive trip. During a dive trip, an open water course participant has the opportunity to participate in 9 dives as part of their course package. These dives consist of 4 training dives which are scheduled to occur during the first two days of the trip and 5 certified dives once the course is completed. Included in these 5 dives is one instructor guided night dive with the remainder being self-guided fun dives.

[38] Mr Lim said that the Open Water course is followed in descending popularity order by Advanced, Nitrox, Rescue and Divemaster courses. Other optional courses that could be sold on board during a trip are Discover scuba diving (DSD), an experience program for non-diving participants, and the PADI Adventure diver program which is an up-sell for the PADI open water course participants. Only staff on board have the option to up-sell these courses as neither of these two programs are pre-sold prior to the trip departure.

[39] In the 12 months from April 2018 to March 2019, Pro Dive Cairns carried 8071 customers to the Great Barrier Reef over 302 scheduled departures with an average occupancy of 83%. Over these departures, the Company carried 2676 open water students at an average of 9 open water students per trip. The maximum open water student to instructor ratio is 6:1 and the number of dive instructors allocated to conduct the open water diver training per trip will depend on the number of open water classes required. Of 302 trips for the period:

• 179 trips required 2 open water classes;

• 70 trips required 1 open water class;

• 43 trips required 3 open water classes; and

• 10 trips were cancelled.

[40] During this period the Company certified 1030 Advanced divers. 737 courses were pre-booked, and 293 were up-sold on the trip. Advanced courses ran on all but 23 departures. Mr Lim also said that: 150 dive trips ran pre-booked Nitrox courses; 62 customers participated in the rescue course; 33 departures ran a Rescue course; 39 customers participated in the Divemaster program; and 54 departures included Divemaster training. On average, 5 open water students went on to participate in the Adventure diver program. Mr Lim tendered a document representing a schedule of all training dives possible. The schedule is not reflective of any single trip as the number and type of dives occurring on the trip is dependent upon a number of conditions such as weather, customer demand and the availability of instructors to conduct particular courses.

[41] Mr Lim also tendered examples of duty roster options indicating how courses could be scheduled on each trip with a range of different course combinations possible. This was said to demonstrate times where there is no scheduled course dive which can be used by staff to allocate additional breaks through a trip beyond those that are scheduled. According to Mr Lim there are also other dive courses sold on the boat by crew which, if not conducted, could result in available time for the allocation of additional breaks for staff.

[42] Mr Lim said that the current Agreement provides that Masters and Dive Instructors are paid on the basis of daily rates (or three quarter or half day rates as applicable) regardless of the hours worked by them. Mr Lim attached a schedule for the 3 Day trip to his witness statement showing breaks and said that employees are allocated meal and other breaks throughout the trip and are expected to take them. Mr Lim also said that as a consequence of the variety of factors affecting any given dive trip, Pro Dive has allowed Masters and Dive Instructors the flexibility to adjust working hours to suit themselves and the trip. An example is that employees may be required to work during the night for the safety of the vessel, its crew and passengers but conversely can take breaks during the day depending on the operational requirements of the trip. Further, if a dive trip returns early on Day 3 employees are not required to remain at work until 5.00 pm once work is completed.

[43] Mr Lim tendered Duty Rosters for dive trips to indicate that employees are regularly taking time off during voyages. Further, Mr Lim said that some Masters and Dive Instructors like to cut short their meal break time so that they can get an earlier start on their duties and finish work earlier. Mr Lim has recommended that employees do not do this as he considers that it creates a false economy of time usage with work often continuing through until 9.00 pm anyway. Mr Lim also said that Pro Dive has also provided flexibility to masters to determine when certain activities such as drills occur during a trip.

[44] Mr Lim stated that if this flexibility has resulted in employees not being able to take scheduled breaks then Pro Dive Cairns will remove that flexibility and instruct employees to work and take breaks in accordance with the daily schedule so as to keep the hours of work within reasonable limits. Similarly, Pro Dive Cairns will instruct Masters and Crew when to undertake drills within their daily schedule.

[45] In relation to the evidence of witnesses for the AMOU Mr Lim noted Mr Mszyca's evidence that he is working 11.5 hours on boat Day 2 and that his Dive Trip Schedule Day 2 contained in Annexure 2 does not include the additional break scheduled for 4.45 pm to 5.45 pm on boat day 2 in the schedule. Mr Lim maintains that this is not required or expected by Pro Dive Cairns. Further, Mr Lim tendered an earlier schedule provided by Mr Mszyca as part of the enterprise bargaining negotiations which identifies that he was working less hours on boat day 2.

[46] In response to Mr Redel's evidence that he had shortened his meal breaks for the trip Mr Lim said that this is not required or requested by Pro Dive Cairns. Mr Redel also records for Day 3 that he kept watch between 0000 and 0300 due to winds in excess of 30 knots. According to Mr Lim, it was within Mr Redel's discretion to allocate this watch to another employee. Further, Mr Lim stated that the requirement to perform a night watch is not typical and if it is removed from his Day 3 record then the total number of hours performed by Mr Redel on Day 3 generally accords with that expected by Pro Dive Cairns.

[47] Mr Lim disputed Mr McGuire's statement that he was a lead instructor and said Pro Dive Cairns does not use such terminology and that Mr McGuire is employed as an experience course instructor. According to Mr Lim the hours of work for the pool course work undertaken over two days at the dive centre generally finish at 6.00 pm and there is a one hour period allocated on Day 2 to catch up on any missed skills, slow students or students affected by medicals meaning that Mr McGuire would rarely cut into his break time. Mr Lim tendered records kept by Pro Dive Cairns indicating that Mr McGuire would regularly finish on Day 2 at 5.30 pm rather than 6.00 pm.

[48] In relation to customer pickups Mr Lim said that these occur on boat Day 1. There is usually little variation to the planned collection of customers and Mr Lim does not consider that it would take between 15 and 20 minutes each day to notify employees of any changes. It is within Mr McGuire's discretion to allocate pickups to other employees. Mr Lim also said that Mr McGuire resides on the north-western side of Cairns and he and another employee can share the pickup of customers from the Northern beaches. Mr McGuire is not required to pick up staff. Mr McGuire is required to commence work at 5.45 am on boat Day 1 and if he is picking customers up from the northern beaches then he will take the pickup bus home on the evening before and does not return to the dive centre to collect it. Mr McGuire receives an allowance of $5 for the pickup of customers as provided in the Agreement. Between 2 January and 1 May 2019 only five of 18 departures had a northern beaches pickup.

[49] Mr Lim tendered records from dive log sheets for all trips departing between 10 April 2019 to 04 May 2019 - 22 trips in total, which indicate that 14 trips arrived on time and that dive 1 was completed on time and required no need to change the standard scheduled lunch break. Mr Lim also said that Pro Dive Cairns does not require all staff to be on duty in adverse weather and that two staff on duty is sufficient to assist passengers in rough weather. Rough weather is a subjective measure, anything above 20 knots or 37km/h would generally be considered rough.

[50] Mr Lim provided details of average monthly wind strength at 0900, during the journey to the reef, measured at Arlington reef from the BOM site in the following months indicating:

• Nov 2018 10.3 knots 19 km/h

• Dec 2018 14 knots 26 km/h

• Jan 2019 14 knots 26 km/h

• Feb 2019 13 knots 24 km/h

• March 2019 11.3 knots 21km/h

• April 2019 18 knots 33 km/h

[51] In relation to Mr Maguire's comment that there is no time scheduled to deal with the Advance diving program, Mr Lim said that consistent with his evidence the vast majority of courses are open water courses and not Advanced courses. Mr Lim also said that he would expect that dive instructors would complete preparations to dive on the way to the reef from Cairns and that he considers that there is sufficient time for this to occur in the Schedule and that employees do not need to cut short their meal break. Mr Lim also disputed that late vessel departures from Cairns is a regular occurrence. Mr Lim said that in relation to night watches, there were 31 trips which took place between 4 April 2019 and 8 May 2019, during which there were only 3 instances of winds in excess of 25 knots requiring a night watch. Mr Lim also said that crew have the option to cancel/not run non-pre-booked course (adventure) to reduce workload, particularly where weather or fatigue are a risk.

[52] Mr Lim maintained that Pro Dive Cairns does not require or expect that employees complete drills or debriefs during designated lunch breaks. While Dive instructors have cleaning duties, they are not required to engage in maintenance, particularly engine maintenance for which they are not qualified. Further, Mr Lim said that while Mr Maguire may choose to work through or shorten his meal breaks, this is not a requirement of Pro Dive. In relation to the evidence of Ms Guillet, Mr Lim said that Ms Guillet is expected to commence work at 5:45 AM on boat day 1, and not 5:30 AM. Mr Lim would expect that preparation for work, such as the loading of Ms Guillet's dive gear, would occur in her own time.

[53] Mr Lim also noted that Ms Guillet acknowledges a break during the trip to the reef on boat trip 1 which is not acknowledged by Mr McGuire. In response to Ms Guillet's evidence about adventure dives on boat day 2 and 3, Mr Lim said that Ms Guillet was not required to participate in these dives but chose to do so of her own volition. Adventure dives are also optional and can be cancelled if crewing is affected by overnight watches. Mr Lim also said that on boat day 3, the office is closed at 4.30 pm. Under cross-examination, Mr Lim was shown minutes of an Instructors meeting dated April 2016. Those minutes indicate that staff were told that a crew member needs to be in the saloon at meal times other than the first breakfast or the last lunch, a total of six meal times. In cross-examination, Mr Lim accepted that he had not been on a trip for over six months and that the schedule he tendered was created two years ago.

[54] Pro Dive submitted that Mr Lim's evidence that employees are allocated meal and other breaks through out a trip and are expected to have those breaks, should be accepted. Pro Dive also points to the evidence of Mr Lim that the Company does not require or expect employees to complete drills or debriefs during designated lunch breaks nor that employees work through or shorten meal breaks. It was also submitted that regard should be had to Mr Lim's evidence that the Respondent has allowed masters and dive instructors the flexibility to adjust working hours relevant to themselves and the trip.

[55] It was also submitted that Mr Lim was cross-examined by the AMOU and CFMMEU representatives in relation to his witness statement and other than accepting that there is a direction for "an employee" to remain with customers in the saloon during meals, his evidence in relation to the Respondent's requirements and expectations in relation to meal breaks was not challenged. Pro Dive submitted that there is no requirement for employees to stand ready during a dive trip as asserted on behalf of the CFMMEU. Further, Pro Dive submitted that there is no evidence before the Commission that the Respondent has sought to reduce employee meal breaks or other entitlements.

[56] Pro Dive also submitted that in light of the evidence of Mr Mszyca, Mr Redel, Ms Guillet and Mr Maguire, it had concluded that some employees have applied the flexibility offered by it in relation to work and break arrangements in a manner that was not required or expected. Pro Dive further submitted that as acknowledged by the Commission during the hearing of 3 June 2019, and by the CFMMEU (at paragraph 42 of its submission), the Respondent may direct employees in relation to their hours of work. Pro Dive stated that it proposed to resolve the dispute by:

• Directing employees to work in accordance with the daily schedule contained at PL3 of the witness statement of Mr Lim;
• Directing employees that they are not required or expected to work through or shorten their meal breaks;
• Directing employees that, during meal breaks, they are not required or expected to:

• Directing employees that they are not required or expected to participate in customer pick ups; and
• Directing employees that they are not required or expected to work after 6:00 pm on pool days.

[57] Pro Dive submitted that these directions being given, the question of the hours of work can be determined by reference to the daily schedule contained at PL3 of the witness statement of Mr Lim.

[58] The dispute in the present case is a bargaining dispute. The parties are endeavouring to negotiate a replacement for the 2014 Agreement. Any such replacement agreement will be required to pass the better off overall test when considered against a relevant modern award. The Respondent asserts that the modern award for the purposes of determining whether an agreement passes the BOOT is the Diving Industry Award. The AMOU does not accept that Masters employed by Pro Dive are properly covered by that Award. This issue is not the subject of the present proceedings. Without determining the appropriate award coverage and only for the purposes of considering whether the activities identified by the Unions are work, I have referred to the Diving Industry Award. I have taken this approach to avoid determining the dispute on a hypothetical basis.

[59] There is no universally applicable definition of the term "work" and neither is there a general principle that "they also serve who stand and wait". Whether an employee is entitled to payment for activities or tasks or whether those activities or tasks are work depends on a number of matters, not the least being the manner in which any relevant industrial instrument deals with payment for work and its definition and the employee's contract of employment.

[60] It will usually be the case that where an employee covered by a modern award or other industrial instrument, is directed or required by an employer to be at the employer's premises or at a particular location or locations where work is performed, for a particular period of time, to provide or be available to provide service for the employer, the employee is at work rather than carrying on private activities, and is entitled to payment.

[61] The question of whether the employer requires the service to be provided is relevant to whether an employee is working. A requirement can be direct or indirect. In some cases, because of the location or the context in which activities are undertaken, the issue of whether those activities are required by the employer or whether they are work may be vexed because the employee is put in a position where he or she has no real option but to perform certain duties. For example, a Master in charge of a vessel has no option but to perform duties to secure the vessel and ensure the safety of crew and passengers notwithstanding that he or she may be on a meal or rest break. There are also cases where activities which would not generally be considered as work, may become so because of the location or the context in which they are undertaken. The circumstances considered by the Full Court of the Federal Court in Warramunda Village Inc v Pryde[16] are a good example of such cases.

[62] The facts in that case were that the employer operated a residential aged care hostel and the relevant employees were employed as personal care workers. The employees were required to work successive shifts which were either "stand up" or "sleepover" shifts. Employees working a stand up shift were on active duty. Employees working on a sleepover shift were supervisors who were required to be present at a flat in the hostel in which they were permitted to eat or sleep or undertake other activities as they pleased but were required to be available to render assistance as required to staff working on stand up shifts. In issue was whether the employees were "on call" or working as defined in relevant awards. The Awards in issue provided that employees were entitled to be paid when they were ready willing and able to work. Those awards did not provide for sleepover shifts and the employer argued before the Court that the history of the awards demonstrated that employees working on sleepover shifts were not intended to be covered and that if they were, the sleepover shifts should be paid for on the basis of the on call provisions rather than as work. While the case concerned the construction of particular awards, the members of the Court made a number of observations about when an employee will be considered to be working which have general application.

[63] Lee J observed that the obligation of the employer to remunerate an employee under the relevant Award in that case arose from the act of directing the employee to be at the employer's place or work to render service to the employer in the employer's enterprise.[17] An employee who was on call was off duty and free to conduct his or her private life subject to the employer being able to direct the employee to report for duty and to the employee organising his or her affairs to be able to respond to the direction.[18] Lee J held that the sleepover shift was work on the basis that the employee was required to be at work rather than on call observing that:

"An employee who attends at the place of employment pursuant to the employer's direction to be at the employer's premises for a period of time and be available to provide service at the premises as required by the employer, is not carrying on private activities but is providing service to the employer. Such an employee is at "work"...

No doubt proper conduct of the employer's enterprise required the employer to have a supervisor available at the hostel in the course of a night shift. Anticipating that active duty by a supervisor on that shift would be intermittent and infrequent, the employer permitted the supervisor to sleep as opportunity allowed. From the perspective of the employee it made little difference whether a call on a 'buzzer' was awaited at the place of work whilst the employee was conscious at a desk or asleep in a bed. How the employer required the employee to render service was a matter for the employer."[19]

[64] Finkelstein J observed that there are situations where employees are under a continual duty to act and those where they are on call. His Honour also observed that employees who were on the sleep over shift were working and could not at the same time, be on call.[20]

[65] The description of "work" in the judgment of Lee J in Warramunda Village Inc v Pryde was referred to by a Full Bench of the Commission in _Construction, Forestry, Mining and Energy Union v Broadspectrum[21]_as an example of the approach to defining that term. In that case the Full Bench found that an employee who attended training outside of working hours, at the direction of his or her employer, was carrying out work for the purpose of the enterprise agreement being construed in that case, and was therefore entitled to overtime payments.[22]

[66] In the present case the Diving Industry Award relevantly provides that the ordinary hours of work are an average of 38 hours per week but not exceeding 152 hours over a period of 28 days. The Diving Industry Award also provides that the ordinary hours may be worked on any day of the week to a maximum of 12 hours on any one day. Further the Diving Industry Award provides for full time, part-time and casual employment with full time employees being defined as engaged to work an average of 38 hours per week, part-time employees an average of fewer than 38 hours per week and for casual employees to be engaged by the hour. Clause 3 of the Diving Industry Award defines working time for an instructor as instruction time plus pre-dive and post-dive briefings of a maximum of 30 minutes duration each. Clause 21 of the Award provides that employees are entitled to an unpaid meal break of 30 minutes at a time fixed by agreement provided that no employee works more than five hours without a break for a meal. The Award also provides for a 10 minute paid rest break during the morning or afternoon. Overtime is payable under the Diving Industry Award for all time worked on any one day in excess of 12 hours.

[67] By virtue of clause 4 the Diving Industry Award covers employers engaged in the provision of underwater services for the purposes of recreational diving and related shipboard services. The Professional Diving Industry (Recreational) Award 2010 does not contain the "ready, willing and able" provision of the kind found in the awards under consideration in Warramunda Village Inc v Pryde. In relation to Boat trips the Professional Diving Industry (Recreational) Award 2010 relevantly provides as follows:

(i) A day trip means a trip that takes place within a period of 24 hours, i.e. the employee leaves and returns within a period of 24 hours.

(ii) A long trip means a trip that exceeds a period of 24 hours.

(iii) When a full-time employee is on a day trip, the employee is entitled to a minimum payment of six hours' ordinary time pay. When a part-time employee is on a day trip, the employee is entitled to a minimum payment of three hours' ordinary time pay.

(iv) When a full-time or part-time employee is on a long trip, the employee is entitled to a minimum payment of six hours' ordinary time pay for each 24 hour period of the trip.

(i) When a casual employee is on a day trip that is in excess of six hours, the employee is entitled to a minimum payment of six hours at the casual rate of pay.

(ii) When a casual employee is on a day trip of less than six hours, the employee is to be paid the actual hours worked."

[68] Clause 15.1 of the Award also entitles employees to be provided with meals and accommodation when travelling off shore for a journey of one night or to be reimbursed for purchases of meals or accommodation. These provisions make clear that employees may be required to work their ordinary hours while on boat trips for periods of longer than 24 hours and that some of the hours on such trips will be non-working hours for which employees are not entitled to be paid. In short, in contrast with the award provisions considered in Warrarmunda Village v Pryde, the Diving Industry Award does not entitle employees to payment in circumstances where they are not required to actually perform any work notwithstanding that they are on a boat with passengers during non-working time.

[69] I turn now to consider the activities and tasks identified in the evidence of employees in the present dispute in respect of which determination is sought as to whether employees performing such tasks are working. In doing so the context in which the activities or tasks are undertaken is important. The context is that employees are working on a boat which is travelling to or located at the Great Barrier Reef for periods of more than 24 hours during the employees' working week. Also on the boat are passengers who are customers of Pro Dive. Employees are required to work, take meals, rest and sleep on the boat in proximity with passengers. They are also required to interact with passengers either specifically at the direction of Pro Dive or because they have no other option due to the close confines on the boat.

[70] It is accepted by Pro Dive that in circumstances where an employee is directed to take his or her meal in a particular location where passengers are also taking their meals, and to remain in such location for a period of time, the employee subject to such direction is working. The AMOU also seeks a finding that time spent by employees talking to passengers while employees are taking breaks is also working time. I accept that it is difficult for employees who are on a boat with passengers for the purposes of providing passengers with diving instruction, to have a break away from passengers. It is probable that passengers will wish to have discussions with employees during breaks either about diving or other topics. It is also the case that there are limited areas on the boat where employees can take their meals or breaks alone and that passengers may seek employees out during their breaks for the purposes of talking to them and it will be difficult for employees to avoid such situations. If an employee chooses to eat a meal in an area where passengers are also present, the employee is not working notwithstanding that the employee may be talking to passengers at the time the employee is taking a meal break. However, if an employee is required to be on watch, in the wheelhouse or with passengers in a specified area while he or she is eating a meal then the employee is working.

[71] I do not accept that Pro Dive can completely resolve the issue of passengers interrupting employees' meals and rest breaks by directing employees to take their breaks or by stating that the Company does not require employees to work through breaks. If a passenger seeks out an employee during the employee's break to seek assistance or to have conversation it is unlikely that the employee could refuse to participate because he or she was on a break. It is also the case that Pro Dive is not directing passengers to refrain from talking to employees during their breaks. Mr Lim stated in cross-examination that he would expect employees to assist passengers out of courtesy even when employees are on breaks. In order to completely resolve the matter Pro Dive would need to take steps to designate an appropriate area on the boat for the exclusive use of employees taking their meals and direct them to take their meals in that area at a specified time without interruption and to take steps to ensure that passengers do not access that area.

[72] I do not accept that the fact that an employee may choose to take a meal break in a particular area and to talk to passengers during the employee's meal or rest break, means that the employee is necessarily working. As a general rule if an employee has a choice as to where he or she takes a meal break and whether or not to participate in conversations with passengers, the employee is not working notwithstanding that the employee may eat meals in areas where passengers are eating and engage in conversations with passengers.

[73] In relation to time spent talking to crew about drills and operational matters, I am not satisfied on the basis of the evidence that employees are required - either directly or indirectly - to undertake this activity during their meal times I do not accept that employees could not undertake discussions about drills and operational matters during working time. It would also be open for Pro Dive to direct them not to undertake these activities during breaks. If employees choose to sit and discuss operational matters during meal or rest breaks without being required by the employer to do so then they are not working. I am also of the view that to find that an employee is entitled to payment during a meal period because of the topics he or she is discussing with other employees would lead to an absurd result whereby an employee could claim payment for such discussions in circumstances where this could not be verified by the employer.

[74] If an employee is clearing or washing dishes that he or she has used to consume a meal, the employee is not working. If an employee is clearing and washing dishes used by other employees and passengers and cleaning in the dining saloon then the employee is working. However, if employees choose to cut their own meal break short to undertake this work in order to finish work earlier in the evening, they cannot complain that they are prevented from having a meal break. If employees press this issue, Pro Dive would be entitled to direct them not to utilise this practice. However, I note that such a practice is mutually beneficial. If Pro Dive requires the employees to eat their meal in a particular location with passengers and then clean up afterwards, the entire period is work and must be remunerated. Conversely to cut short a meal break benefits the employee by enabling the employee to finish work earlier during the evening because the start time of the evening dive can be brought forward. An employee driving a vessel is also working notwithstanding that the employee may be eating a meal while doing so.

[75] Employees who are signing dive logs are working while undertaking this task on the basis that it is a requirement of the course delivered by Pro Dive for passengers, and benefits Pro Dive. I am not satisfied that meal or rest breaks are the only available times at which this work can be undertaken so that it is required - either directly or indirectly - to be done during meal or rest breaks. Employees who are required to move the vessel while not on a dive watch are also working. Similarly employees engaged on a watch are working. Where employees are engaged in driving a Company vehicle to transport customers of Pro Dive to and from hotels, the employees are also working.

[76] For the above reasons, I determine the issues raised by the AMOU as follows:

• Time spent talking to passengers while employees are on a meal break is not working time unless the employees are directed to take their meals or breaks in a particular location and to remain with passengers for the duration of the meal or break.

• Employees who are directed to take their meals in the dining saloon with passengers and to remain there for a specified period are working.

• Employees who are undertaking a watch are working in circumstances where relevant safety standards require the watch or they are directed to undertake it by the employer.

• Time spent discussing drills and other operations is working time where employees are directed or required to have such discussions. If they are directed not to have such discussions in their meal or break periods they are not working in circumstances where they choose to have such discussions.

• Employees who are required to clear tables, clean the dining saloon and wash dishes used by passengers or other employees are working.

• Employees who are required to drive a vessel to a particular location or to relocate it are working notwithstanding that they may be consuming a meal while they do so.

• Employees who are undertaking work of signing dive logs are working.

[77] Pro Dive could resolve many of these issues by simply directing employees not to undertake certain activities during meal and rest breaks or to take their meal and rest breaks without interruption. Pro Dive could also direct employees not to up sell additional courses. However, to take these steps would disadvantage both employees and the Company.

[78] There were a number of disagreements between employee witnesses and Mr Lim about actual hours worked by employees on each day including on pool days. These disagreements may be the result of the environment in which work is performed - on a boat subject to vagaries such as weather and the need to attend to passengers undertaking training. To assist the parties to move forward and deal with the issues of identifying working and non-working time for the purposes of negotiating a replacement for the current agreement, I make the following observations.

[79] An employer bears responsibility for recording working hours. In this regard I note that s. 535(1) of the Act requires that employers must make and keep records of the kind prescribed by the Regulations in relation to each employee and s. 535(2)(b) requires that such records include information prescribed by the regulations. Regulation 3.34 provides as follows:

For subsection 535(1) of the Act, if a penalty rate or loading (however described) must be paid for overtime hours actually worked by an employee, a kind of employee record that the employer must make and keep is a record that specifies:

(a) the number of overtime hours worked by the employee during each day; or

(b) when the employee started and ceased working overtime hours."

[80] Under the current Agreement employees work and are remunerated on the basis of daily, three-quarter or half-day engagements. Shift lengths are up to four hours for half-day shifts, up to six hours for three-quarter day shifts and more than 6 hours for a full-day shift. Overtime applies under the current Agreement where employees work additional days. Overtime does not apply to work over a particular shift length on any day.

[81] If a replacement agreement is negotiated it will be necessary that it pass the BOOT in order to be approved. The BOOT is assessed by reference to the relevant modern award and not the current agreement. In respect of hours of work and payment, the BOOT is applied by comparing the payment that employees would receive for working particular hours under the Agreement and the payment that they would receive for working the same hours at the same time under the relevant award.

[82] If the relevant Award is the Professional Diving Industry (Recreational) Award 2010 ordinary hours are an average of 38 per week over a period not exceeding 28 days and up to 12 hours per day. Overtime is time worked on any one day in excess of 12 hours. If the relevant Award is the Marine Tourism and Charter Vessels Award 2010 ordinary hours averaging 38 per week can be averaged over a 12 month period with a maximum of 12 hours per day worked between 6.00 am and 2.00 am in a six week period.

[83] Accordingly for a replacement agreement to pass the BOOT it will be necessary for the Commission to be satisfied that under the Agreement employees are paid more than they would be paid for working the same hours under the relevant Award calculated on the Award rate. If rates in the Agreement are above those in the Award the Agreement may pass the BOOT even if all hours claimed by the Union are not remunerated under the Agreement. For example, if the Union claims that employees are working a 12.5 hour day and the Agreement provides for 12 hours of payment, the Agreement will pass the BOOT if the amount to be paid to employees under the Agreement for 12 hours exceeds the amount payable under the Award for 12.5 hours.

[84] It is also clear that there are swings and roundabouts in terms of the hours of work and payment under the current agreement. After considering the evidence in the hearing before me I am satisfied that there are occasions when employees work hours in excess of those in the employer's scheduled hours and days when they work less than the scheduled hours. The nature of the work and the context in which it is performed also means that employees are in close confines with passengers and are required to engage with them during times when they are scheduled to be on meal or rest breaks. While Pro Dive can direct employees to take meal and rest breaks and not to perform work at such times, it cannot direct passengers to cease engaging with employees during meal and rest breaks.

[85] The Unions have put cogent evidence before me which establishes that on the balance of probabilities employees are regularly working hours in excess of the maximum daily hours under the Diving Industry Award. If the Company seeks approval of a replacement agreement which does not adequately remunerate employees for this work the Company runs the risk that the Agreement will not pass the BOOT. This is a matter that should be the subject of negotiations for the replacement Agreement.

Mr D Quinn of Holding Redlich on behalf of the CFMMEU.

Mr B Cooper of Livingstones on behalf of the Respondent.

[1] Exhibit A1 Statement of Arek Mszyca; Exhibit A2 Reply Statement of Arek Mszyca.

[2] Exhibit A3 - Statement of Raphael Redel; Exhibit A4 - Statement of Raphael Redel dated 1 June 2019.

[3] Exhibit A6 Statement of Niki McGuire.

[4] Exhibit A5 Statement of Stephanie Guillet.

[6] Curro v Beyond Productions Pty Ltd (1993) NSWLR 337, 342.

[7] Forstaff Pty Ltd v Chief Commissioner of State Revenue (NSW) [2004] NSWSC 573; (2004) 144 IR 1, [91].

[8] Professional Diving Industry (Recreational) Award 2010, Cl.20.2.

[13] Re Russell Francis Durnford v Allen Taylor and Company Limited [1990] FCA 342; 34 IR 423.

[14] Duncans Holdings Ltd v Desmond Keith Cross & Ors [1997] FCA 1090.

[15] Construction, Forestry, Mining and Energy Union v Cooks Construction Pty Ltd [2006] AIRC 65.

[21] [2017] FWCFB 269.

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