//
[72]
[2020] FWCFB 4443
General information, not legal advice.
Fair Work Commission (Full Bench)
2020-09-09
Original judgment source is linked above.
s.604 - Appeal of decision
Construction, Forestry, Maritime, Mining and Energy Union
Fantasea Pty Limited; The Australian Maritime Officers' Union
Appeal against decision [2020] FWC 2720 of Deputy President Boyce at Sydney on 25 May 2020 and decision [2020] FWCA 2717 of Deputy President Boyce at Sydney on 26 May 2020 in matter number AG2019/3006.
[1] The Appellant, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), seeks permission to appeal and if granted, appeals two decisions of Deputy President Boyce concerning an application for approval of a single-enterprise agreement.
[2] On 15 August 2019, Fantasea Pty Ltd (Fantasea) applied to the Commission pursuant to s.185 of the Fair Work Act 2009 (Act) for approval of the Fantasea Masters, Coxswains and Deckhands Enterprise Agreement 2019 (Agreement). Fantasea operates motorised passenger vessels on Sydney Harbour and at Palm Beach.[1] The Agreement was approved by Deputy President Boyce on 26 May 2020 (Approval Decision) following findings made by the Deputy President on 25 May 2020 (Interim Decision). In the course of arriving at the Approval Decision, the Deputy President dealt with objections raised by the CFMMEU, a bargaining representative for the Agreement.
[3] At first instance, the CFMMEU opposed approval of the Agreement, submitting that it did not pass the better off overall test (BOOT) and was not genuinely agreed.[2] The CFMMEU's primary submission was that Fantasea, in respect of its activities in Palm Beach and Sydney Harbour, is wholly covered by the Ports, Harbours and Enclosed Water Vessels Award 2010 (Ports Award) for the purposes of the BOOT, and not the Marine Tourism and Charter Vessels Award 2010 (Marine Tourism Award).[3] The CFMMEU alternatively contended that a significant number of Fantasea's employees in on-water classifications are covered by the Ports Award.[4] Fantasea contended that the Marine Tourism Award was the correct and only underpinning award for the purposes of the BOOT.[5] It was uncontroversial that if the Ports Award alone, or the Ports Award together with the Marine Tourism Award covered the employer, the Agreement would not pass the BOOT.[6]
[4] Concerning the requirements in s.188 of the Act, the CFMMEU contended that having regard to the different awards potentially covering the operations of Fantasea, and the absence of any coverage clause defining the scope of the operations in respect of which the Agreement will apply, the Commission could not be satisfied that the Agreement had been genuinely agreed.[7]
[5] In the Interim Decision, the Deputy President dealt with the CFMMEU's submissions concerning award coverage for the purposes of assessing whether the agreement passed the BOOT and whether the Agreement had been genuinely agreed.
[6] In doing so, the Deputy President made the following findings:
• the Marine Tourism Award and the Ports Award may have overlapping coverage;[8]
• the Ports Award "does not cover" employers and employees who are "wholly or substantially" covered by the Marine Tourism Award;[9]
• both the Marine Tourism Award and the Ports Award are 'industry' awards, meaning that the focus, for the purposes of ascertaining award coverage, is upon the business activities of the employer;[10]
• while coverage under the Marine Tourism Award excludes "the operation of ferries engaged in regular scheduled passenger and/or commuter transport" (exclusion), this does not mean that simply because a vessel has a regularly scheduled timetable that the exclusion applies;[11]
The operation of vessels on a day or overnight charter wholly or principally:
o engaged in the provision of water orientated tourism, leisure and/or recreational activities (third limb).[12]
• in relation to the three limbs and the exclusion, it is necessary to have particular regard to the manner in which a business seeks to engage its vessels, including from an overall character, purpose and marketing perspective;[13]
• in determining award coverage under the Marine Tourism Award, the ultimate finding that is to be made concerns the operation of vessels by the employer's business on an overall basis;[14]
• in determining whether an employer is operating vessels wholly or principally in the marine tourism and charter vessels industry, and is wholly or substantially covered by the Marine Tourism Award, a combination of actual vessel utilisation (across the whole of an employer's business) as at test time, and revenue percentages as at test time, is the appropriate method for assessment.[15]
[7] Having made these findings, the Deputy President concluded that Fantasea operates a substantial majority of its vessels (on an overall basis) wholly or principally in the marine tourism and charter vessels industry, and is therefore wholly and substantially covered by the Marine Tourism Award.[16] In the result, the Deputy President concluded that the Marine Tourism Award is the award against which the Agreement is to be compared for the purpose of assessing whether it passed the BOOT.[17] The Deputy President was satisfied that the Agreement meet the requirements of s.193 of the Act. The Deputy President was also satisfied that Fantasea had complied with s.180(5) of the Act and the relevant employees had genuinely agreed to the Agreement.
[8] In the Approval Decision, the Deputy President records that he is satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to the application for approval, had been met. The Deputy President approved the Agreement.
[9] The notice of appeal advances seven grounds of appeal. These may conveniently and broadly be summarised as follows:
Grounds 1 - 4 variously contend error in the Deputy President's construction and application of the definition of marine tourism and charter vessel industry in clause 3 of the Marine Tourism Award. Firstly, the CFMMEU contends that the Deputy President erred in concluding that the exclusion "does not include the operation of ferries engaged in regular scheduled passenger and/or commuter transport" needs to be applied having regard to the purpose or the use or engagement of the vessels in the context of a consideration of an employer's business activities overall. Secondly, the CFMMEU submits that the Deputy President fell into error in his application of the exclusion to two of Fantasea's services by determining the industry of the vessels by reference to the activities of passengers at their destination rather than by reference to the character of their operation as vessels.
Appeal ground 5 is also concerned with the application of the definition of marine tourism and charter vessel industry. The CFMMEU challenges the Deputy President's characterisation of Fantasea's Water Taxi Service by reference to the activities of passengers. It also challenges the Deputy President's reliance upon the evidence of Mr Bicknell to reach a conclusion as to the whole or principal purpose of the Water Taxi Service in circumstances where the Deputy President properly accepted such evidence should be given limited weight.
Appeal ground 6 contends that the Deputy President was wrong to give vessel utilisation and revenue data more weight than the evidence of the extent of work performed by employees operating within each industry.
Appeal ground 7 concerns the Deputy President's regard to data which is said to exclude a significant portion of the activities of Fantasea in the period leading up to the test time.
[10] We begin with a consideration of the proper construction of the coverage provisions of the Marine Tourism Award and the Ports Award.
[11] The application of the BOOT to an enterprise agreement requires the Commission to assess whether as a test time each "award covered employee" and each "prospective award covered employee" for the agreement would be better off overall if the agreement applied to the employee then if the relevant modern award applied to the employee.[18] An "award covered employee" for an enterprise agreement is an employee who is covered by the agreement and at test time, is covered by a modern award that is in operation and covers the employee in relation to the work that he or she is to perform under the agreement and covers his or her employer.[19]
[12] A "prospective award covered employee" for an enterprise agreement is a person who, if he or she were an employee as at test time of an employer covered by the agreement, would be covered by the agreement and would be covered by a modern award that is in operation, would cover the person in relation to the work that he or she would perform under the agreement and covers the employer.[20]
[13] Consequently, the Commission is required to identify the relevant modern award or awards that cover award covered employees covered by the agreement and their employer and that would cover the prospective award covered employees who would be covered by the agreement and that covers the employer as at test time.
[14] Relevantly for the purposes of this appeal the coverage of two modern awards as at test time (15 August 2019) arise for consideration, namely, the Marine Tourism Award and the Ports Award. The CFMMEU cavils with the Deputy President's conclusion that the Respondent and its employees were at test time wholly or substantially covered by the Marine Tourism Award so as to be excluded from coverage by the Ports Award by reason of clause 4.3 of that award.
[15] At test time clause 4 of the Marine Tourism Award set out its coverage relevantly as follows:
"4.1 This industry award covers employers throughout Australia in the Marine Tourism and Charter Vessels Industry and their employees in the classifications listed in clause 13 - Minimum Wages to the exclusion of any other modern award.
4.7 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.
NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage."
[16] Marine tourism and charter vessels industry was at test time, by clause 3 of the Marine Tourism Award, defined as meaning:
"...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".
[17] At test time clause 4 of the Ports Award relevantly set out its coverage as follows:
"4.1 This award covers employers throughout Australia in the ports, harbours and enclosed water vessels industry and their employees in the classifications listed in clause 13 to the exclusion of any other modern award. The award does not cover employers and employees wholly or substantially covered by the following awards:
(g) the Marine Tourism and Charter Vessels Award 2010.
For the purpose of clause 4.1, ports, harbours and enclosed water vessels industry means the operation of vessels of any type wholly or substantially within a port, harbour or other body of water within the Australian coastline or at sea on activities not covered by the above awards.
4.9 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.
NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage." [Emphasis added]
[18] The effect of clause 4.1(g) of the Ports Award is that if an employer and its employees is wholly or substantially covered by the Marine Tourism Award, the Ports Award cannot cover that employer and those employees. If an employer is "in the Marine Tourism and Charter Vessels Industry" the Marine Tourism Award covers that employer and the employer's employees performing work caught by the classifications for which that award makes provision and does so to the exclusion of any other modern award. This is important in identifying employees and prospective employees who are or would be covered by an enterprise agreement as award covered or prospective award covered employees, particularly, in the instant case, as the Agreement is not in terms confined in its operation to the marine tourism and charter vessels industry.
[19] An employer is in the marine tourism and charter vessels industry if the employer operates its vessels in one or more of the particular ways described in the industry description found in clause 3. It must be said that the drafting of the industry description leaves much to be desired. Setting the exception to one side for the moment, the Deputy President construed the industry description or definition as having three limbs set out at [33](f) of the Interim Decision and which we have earlier reproduced. This was consistent with the construction of the definition for which Fantasea had advocated.[21]
[20] Although we can appreciate how the Deputy President came to this view, we do not think it is correct for several reasons. First, such a reading would invariably require reading into the definition of the word "or" or to use the form of conjunction adopted elsewhere in the definition, "and/or" between the words "beverage purposes" and the word "engaged". The absence of a conjunction is not obvious so as to give meaning to or to make sense of the industry definition. Secondly, the definition uses the conjunctions "or" on four occasions, "and/or" on three occasions and the conjunction "and" on a single occasion. Were it intended that a conjunction should connect the parts of the clause, it seems likely the drafters would have included a conjunction. Thirdly, the operation vessels engaged in "water orientated tourism, leisure and/or recreational activities", described by the Deputy President as the third limb, is apt to be included in the first limb.
[21] We consider that on a proper construction of the definition of the marine tourism and charter vessels industry, the definition consists of two limbs as follows:
"...the operation of vessels engaged on a day charter or for an overnight charter wholly or principally:
[22] This was the construction for which the CFMMEU had advocated at first instance.[22] Our reading is also consistent with the current definition found the clause 4.2 of the Marine Tourism and Charter Vessels Award 2020 and is as follows:
"4.2 The marine tourism and charter vessel industry means the operation of vessels engaged on a day charter or for an overnight charter wholly or principally as a tourist, sightseeing, sailing or cruise vessel and/or as a place of or for entertainment, functions, restaurant/food and beverage purposes**,** engaged in the provision of water orientated tourism, leisure and/or recreational activities but does not include the operation of ferries engaged in regular scheduled passenger and/or commuter transport." [Emphasis added]
[23] The use of a comma between the words "beverage purposes" and the word "engaged" suggests that the earlier described third limb is, in fact, part of or a caveat to the second limb.
[24] Thus, rather than a vessel being operated as "a place of or for entertainment, functions, restaurant/food and beverage purposes" simpliciter, the vessel must be so operated while it is engaged in the provision of water orientated tourism, leisure and/or recreational activities.
[25] Although we have come to a different view about the operation of the principal parts of the definition of marine tourism and charter vessel industry to that adopted by the Deputy President, we do not consider that this provides a proper basis for upholding the appeal for two reasons. First, the CFMMEU did not on appeal challenge the Deputy President's three limb construction of the definition of marine tourism and charter vessel industry. Instead it contended, relevantly, that the first part of the definition (whether considered as two or three limbs) focuses on the use of the vessel itself for the tourism or similar purpose, or upon the on-water activities, not upon the activity being engaged in by the passenger at their ultimate destination.[23] Secondly, for reasons which we will shortly explain, we do not consider that the Deputy President erred in his ultimate conclusion that Fantasea is an employer in the marine tourism and charter vessel industry and for the purpose of assessing whether the Agreement passed the BOOT, the relevant reference instrument was the Marine Tourism Award.
[26] If an employer and its employees are wholly or substantially covered by the Marine Tourism Award the effect of clause 4.1(g) of the Ports Award is that the Ports Award does not cover the employer and its employees, including those employees on a vessel operated by the employer that is not engaged in one or more of the activities described in the marine tourism and charter vessel industry definition in the Marine Tourism Award. As the Full Bench of the Commission in Construction, Forestry, Maritime, Mining and Energy Union v Vyscot Pty Ltd[24]observed:
"[14]...Thus, taking the CFMMEU's case at its highest, it must nevertheless follow (and the CFMMEU must be taken to concede) that Vyscot and a very substantial majority of its employees are covered by the Marine Tourism Award. That attracts the operation of clause 4.1(g) of the Ports Award, which excludes from the coverage of the Ports Award "employers and employees wholly or substantially covered" by the Marine Tourism Award. The CFMMEU's submission that this exclusion applies only where all employees are covered by the Marine Tourism Award cannot be accepted; the exclusion only makes sense if it is read as meaning that the exclusion applies where an employer and all or a substantial majority of its employees, treated as a collective, are covered by the Marine Tourism Award. That is consistent with the way the exclusionary provision of clause 4.1 of the Ports Award was applied by the Full Bench in MUA v Sea Swift Pty Ltd..."[25] [Endnote omitted; emphasis added]
[27] We turn then to the operation of the exclusion. The Deputy President considered the operation of the exclusion as follows:
h) in relation to the three limbs, and the Exclusion, it is necessary to have particular regard to the manner in which a business seeks to engage its vessels, including from an overall character, purpose and marketing perspective. In other words, whilst it is trite that nearly all vessels are a means of transportation from A to B, I do not accept that it can be said that because a vessel is regularly scheduled, and passengers or commuters can or do use that vessel as a means of transport (in addition to tourists), that the Exclusion automatically applies. To do so would be to ignore the use of a vessel in "tourist", or "sightseeing", or "sailing" or "cruise" activities, and/or its engagement in "water orientated tourism, leisure and/or recreational activities" simply because it may be regularly scheduled and/or used by persons in addition to tourists, or in addition to persons engaging (or seeking to engage) in a leisure or recreational activity; and
i) whilst the determination of award coverage under the Marine Award will ordinarily require analysis of the engagement the employer's vessels, the ultimate finding that is to be made concerns the operation of vessels by the employer's business on an overall basis. Vessels may well be used by some passengers merely as a means of transportation (i.e. as a ferry service), but the Exclusion needs to be applied having regard to the purpose of the use or engagement of the vessels in the context of a consideration of an employer's business activities overall."[26]
[28] We generally agree with the Deputy President. To this we would add that the exclusionary provision operates upon the operation of a vessel by the employer for the purposes of assessing whether the operation of the vessel is in the marine tourism and charter vessel industry. The context to which the Deputy President refers is important in assessing whether the exclusion is engaged. The generalised proposition advanced by the CFMMEU, that the operation of a vessel on a timetable which transports passengers from one location to another engages the exclusion, must be rejected. The exclusion is engaged when a vessel is operated by the employer pursuant to a regular timetable for the purpose of transporting passengers or commuters from one location to another. The exclusion is not engaged when the employer operates a vessel for touristic purposes otherwise falling within the definition of marine tourism and charter vessel industry on a regular timetable. This is so even if incidental to its touristic operation the vessel may also be boarded by passengers or commuters for the purposes of transporting the passengers or commuters from one location to another. A vessel operated "principally" for a touristic purpose is not excluded simply because, apart from the main operational purpose, passengers or commuters wishing to be taken from one location to another may also board.
[29] We turn then to the grounds of appeal.
[30] By ground 1 the CFMMEU describes the ultimate error it contends was made by the Deputy President. Its success depends upon whether we conclude the Deputy President erred in the manner contended by any one of the other enumerated appeal grounds. It follows from our discussion above that grounds 2 and 3 of the notice of appeal both fail. We turn to ground 4.
[31] By ground 4 the CFMMEU contends the Deputy president erred in his application of the definition of the marine tourism and charter vessel industry to the Broken Bay and Shopper Hopper Cruises vessels by determining the industry of the vessels by reference to the activities of passengers at their destination rather than by reference to the character of their operation as vessels.
[32] The Broken Bay service is considered by the Deputy President as follows:
"[50] The CFMMEU contends that the Broken Bay service concerns "the provision of transport", and thus does not fall within the definition of the Marine Tourism Industry. I reject the contention. Whilst the Broken Bay service is a means of transport, its purpose is to transfer school children to school camps (at the Broken Bay Recreational Centre). Camping is a tourist or leisure activity, even if it is done as part of a school curriculum and/or pursuant to life experience teaching provided by a school. The service does not run to a timetable, but is provided on an as needs basis to the client. On the evidence, I find that the whole or principal purpose of the Broken Bay service falls within the definition of the Marine Tourism Industry."[27] [Endnotes omitted]
[33] The CFMMEU correctly contends that the definition of marine tourism and charter vessel industry focuses relevantly on the use of the vessel itself as a tourist vessel and does not focus upon the activities of the passengers at their ultimate destination. It does not follow that the activities in which the passengers will engage when taken to their destination is irrelevant in assessing the purpose for which the vessel is operated. Although it must be accepted that there was no evidence about the activities on the vessel conducting the Broken Bay charters as it made its way to its destination not accessible by road, there was sufficient evidence to support the Deputy President's conclusion. Mr Stuart Bicknell's evidence was that the Broken Bay service is provided pursuant to an agreement with the New South Wales Government's Office of Sport to transfer school children to school camps, the service does not run to a timetable and is provided on an as needs basis.[28] Although the vessel is unquestionably engaged in the movement of passengers, that says little about the purpose for which the vessel is operated. We accept, as Fantasea contends, that the purpose of the transport of school children by the vessel to a camp is for a tourist, recreational or leisure purpose. The word "tourist" comprehends a person who tours, especially for pleasure as well as a person who is visiting a place for pleasure and interest. A vessel which has as its main purpose transporting school children to school camps (visiting the place for pleasure and interest) is, in our view, apt to be described as a tourist vessel. The Deputy President's conclusion to that effect was not only open on the evidence but was, in our view, correct.
[34] The Deputy President dealt with the Shopper Hopper service in the Interim Decision as follows:
"[51] The CFMMEU argues that the Shopper Hopper Cruise concerns the provision of transport, and thus does not fall within the definition of the Marine Tourism Industry. In short, the CFMMEU contends that because some passengers may partake in recreational or leisure activities after they arrive at a destination, this does not bring this vessel service within the definition of the Marine Tourism Industry.
[52] Fantasea markets the Shopper Hopper Cruise as a sight-seeing experience with onboard commentary of city sights in an open roof ultra-modern catamaran. One "jumps on board" to not only enjoy the experience of the trip (and take photos), but to be dropped off at discount shopping outlets (with or without a restaurant meal add-on) at Birkenhead Point, Circular Quay, and Darling Harbour (the latter two destinations being two major tourist and sight-seeing attractions in Sydney). Services are scheduled to allow passengers (shoppers and/or diners) maximum convenience. Mr Bicknell points out that this Cruise operates pursuant to an agreement with MIRVAC owned shopping centres, and that the crew on-board assist passengers with their shopping bags, and relay to passengers special or discount shopping offers available at Birkenhead Point.
[53] On the evidence, I find that the whole or principal purpose of the Shopper Hopper Cruise is that of tourism, leisure or recreation, and the service therefore falls within the definition of the Marine Tourism Industry."[29] [Endnotes omitted]
[35] As to this service, the CFMMEU contends there was no dispute that the Shopper Hopper was a timetabled passenger service, operated by the vessel Fantasea Explorer but the Deputy President nevertheless concluded that the whole or principal purpose of the Shopper Hopper is that of tourism, leisure or recreation. The CFMMEU contends the Deputy President erred in that conclusion because the exclusion in the definition of marine tourism and charter vessel industry operates by reference to the manner in which a vessel's services are offered to the public, not by reference to the market to which those services are targeted, or the purpose of the passenger's journey. It contends that both commuters (for example workers) and other types of passengers (for example persons travelling for non-work purposes, such as a shopping trip) are comprehended by the exclusion. It contends that once the exclusion operates to take a service outside the scope of the industry that it is not brought back in by reference to the experience on the vessel or the purpose of the travellers.
[36] As we have earlier observed, the exclusion in the definition of marine tourism and charter vessel industry is engaged when a vessel is operated by the employer pursuant to a regular timetable for the purpose of transporting passengers or commuters from one location to another. The exclusion is not engaged when the employer operates a vessel for touristic purposes otherwise falling within the definition of marine tourism and charter vessel industry on a regular timetable. If the vessel is operated "principally" for a touristic purpose it is not excluded simply because passengers or commuters wishing to be taken from one location to another may also board.
[37] As Fantasea pointed out in its evidentiary material before the Deputy President, the Shopper Hopper cruise operates under an arrangement with the MIRVAC owned shopping centres at Darling Harbour and Birkenhead Point Brand Outlet and as part of the cruise, passengers are transported between Darling Harbour, Circular Quay and Birkenhead Point on the Fantasea Explorer.[30] The evidence before the Deputy President also established that Fantasea promotes the cruise to prospective passengers as allowing them to:
"Hop, shop, dine, and play with services from Darling Harbour and Circular Quay to Birkenhead Point Brand Outlet. Cruise past Sydney icons including the Sydney Opera House, cruise under the Harbour Bridge, and past Luna Park and Cockatoo Island to reach the ultimate shopping destination, Birkenhead Point."[31]
[38] The promotional material for the cruise includes that passengers should "[J]ump on board to enjoy Sydney Harbour..."[32] and that the cruise includes "[C]ommentary on board with friendly and professional crew".[33] The evidence before the Deputy President was that a member of the crew on-board the Shopper Hopper cruise is responsible for assisting passengers with their shopping when boarding, providing information to passengers regarding special offers at the Birkenhead Point Brand Outlet and providing commentary of landmarks and city sights during the cruise.[34]
[39] We consider the evidence discloses that the vessel, the Fantasea Explorer, is operated mainly for a touristic purpose described in the definition of the marine tourism and charter vessel industry. The Deputy President was correct to so conclude. That the Fantasea Explorer operates a scheduled service and can be boarded by passengers or commuters, whose purpose may not be to use the vessel for its intended touristic purpose, but as a means of travelling from one location to another, does not alter the correctness of the ultimate conclusion. As the CFMMEU has been at pains to point out, it is the purpose for which the vessel is operated and not the purpose of the passenger boarding the vessel that is relevant. Here the main or principal purpose of the operation of the Fantasea Explorer is clear, it is touristic, and the exclusion is not engaged.
[40] It follows that appeal ground 4 is rejected.
[41] By this ground of appeal the CFMMEU contends error in the application of the definition of the marine tourism and charter vessel industry to Fantasea's water taxi service, and specifically by:
a. determining the industry of the Water Taxi Service by reference to the activities of passengers at their destination rather than by the character of the operation of the vessels; and
b. relying on the evidence of Mr Bicknell to conclude as to the whole or principal purpose of the Water Taxi Service where the Deputy President properly accepted such evidence should be given limited weight.
[42] The Deputy President dealt with Fantasea's water taxi service in the Interim Decision as follows:
"[58] Fantasea's Water Taxi service operates sunset and picnic cruises, as well as ad hoc transfers.
[59] It is without doubt that the whole or principal purpose of Fantasea's sunset and picnic cruises is that of tourism, leisure or recreation. Mr Bicknell's evidence is that "water taxi's (sic) are more of a 'boutique' option and are generally used for special events, sightseeing cruises, and transferring tourists around Sydney Harbour". By reference to Fantasea's confidential revenue table, Mr Bicknell was unable to say what proportion of water taxi revenue was derived from sunset and picnic cruises, what proportion was derived from special events, sightseeing cruises, and transferring tourists, and what proportion was derived from ad hoc passenger transfers. However, he did state: "As an observer I would say that there is a predominance of cruises".
[60] The CFMMEU submitted that, given the absence of tangible evidence as to the actual split between water taxi use, I am unable make any finding that the whole or principal purpose of the water taxi service falls within the Marine Tourism Industry. However, this submission is made in circumstances where the Exclusion under the definition of the Marine Tourism Industry cannot be said to apply as the ad hoc transfers of passengers by vessel (water taxi) are not "regularly scheduled" passenger and/or commuter transport.
[61] All in all, I am prepared to find that the whole or principal purpose of the water taxi service falls within the Marine Tourism Industry. In making this finding:
(a) I only need find that the water taxi service has a 'principal' purpose of tourist, sightseeing, sailing or cruising, or be principally engaged in the provision of water orientated tourism, leisure and/or recreational activities;
(b) I note that it is uncontested that the whole purpose of the water taxi sunset and picnic cruises is that of tourism, leisure and/or recreation;
(c) I rely upon and give some, albeit limited, weight to the evidence of Mr Bicknell that a water taxi is generally used for special events, sightseeing cruises, and transferring tourists around Sydney Harbour (to attend restaurants, pubs, beaches or other tourist venues), and are predominantly used for cruises. Whilst Mr Bicknell was challenged as to the basis upon which he made these statements and/or formed such opinions, it was never put to him that he was wrong in this regard. Given Mr Bicknell's role and oversight of the Fantasea business over many years, I accept that he is able to give the evidence that he has in relation to the water taxi services provided by Fantasea, and that I am entitled to rely upon same;
(d) I note that the Exclusion does not apply, in that water taxi services are not regularly scheduled; and
(e) the ordinary meaning of "cruise vessel" would include a water taxi."[35] [Endnotes omitted]
[43] Before the Deputy President the CFMMEU accepted that some of the charters concerning Fantasea's water taxi service, and specifically, the sunset cruises or picnic cruises, were properly to be characterised as within the marine tourism and charter vessel industry as defined. However, it did not concede that this also applied to water taxis used for ad hoc transfers. It must also be accepted that no usage data as to revenue generated or working hours across the separate activities in which water taxis were utilised (that is sunset cruises, picnic cruises and ad hoc transfers) were adduced as evidence.
[44] Mr Bicknell's evidence as concerns the water taxi service was that Fantasea "performs private or tailored charter trips as and when required by Fantasea customers" which include the sunset cruise, a picnic cruise and ad hoc zone transfers where water taxis "are more of a 'boutique' option and are generally used for special events, sightseeing cruises, and transferring tourists around Sydney Harbour".[36]
[45] The Deputy President in the passages set out above explains two important qualifications as to his conclusion that the whole or principal purpose of the water taxi service falls within the marine tourism and charter vessel industry. The first is that he need only conclude that the water taxi service has a 'principal' purpose of tourist, sightseeing, sailing or cruising, or be principally engaged in the provision of water orientated tourism, leisure and/or recreational activities. This was undoubtedly correct. The second is the Deputy President's explanation as to the weight that he accorded to some of Mr Bicknell's evidence about the ad hoc water taxi service. Importantly, the Deputy President notes that although Mr Bicknell was challenged as to the basis upon which he gave evidence that a water taxi is generally used for special events, sightseeing cruises, and transferring tourists around Sydney Harbour (to attend restaurants, pubs, beaches or other tourist venues), and are predominantly used for cruises and/or formed such opinions, it was never put to him that he was wrong.
[46] There is little doubt that Mr Bicknell was well-placed to give that evidence since as the Deputy President noted in the passages of the Interim Decision reproduced earlier, Mr Bicknell was the relevant manager with oversight of Fantasea's business over many years. The Deputy President also noted that the exclusion did not apply because the water taxi services were not regular scheduled passenger commuter transport, that the ordinary meaning of "cruise vessel" would include a water taxi service and ultimately, on a fair reading of the Interim Decision when taken together and viewed as a whole, the operation of the water taxi services, comprising the sunset cruise picnic cruise and the ad hoc transfers, was within the marine tourism and charter vessel industry as defined. Viewed fairly and read as a whole, the Interim Decision discloses that the Deputy President considered the character of the operation of the water taxis to determine that they were operated principally for touristic purposes. The real complaint advanced by the CFMMEU appears to be the weight attributed by the Deputy President to the evidence of Mr Bicknell. There is nothing in the material which suggests that the decision to accord some weight to Mr Bicknell's evidence rises to the level of appealable error.
[47] We consider that the conclusion reached by the Deputy President as to the principal purpose for which the water taxi service is operated was open to him on the evidence and no appealable error is disclosed. This appeal ground fails.
[48] It is convenient that we deal with ground 7 of the notice of appeal before returning to ground 6. By ground 7 the CFMMEU contends the Deputy President erred in considering the question of award coverage by having regard to data relied upon by Fantasea which excluded the activities of the Respondent in the period leading up to the test time, namely, ferry work for Harbour City Ferries.
[49] Although the Harbour City Ferries operations constituted the single largest source of hours worked within the business and accounted for approximately 25% of Fantasea's revenue in the 12 months prior to test time, it is uncontroversial that the period about which the CFMMEU complains was a period before test time.
[50] The CFMMEU contends that the data upon which the Deputy President relied in respect of vessel utilisation, revenue, and labour hours excluded the Harbour City Ferries work and so produced an artificial impression of the character of Fantasea's operations as at test time. All other things being equal, this contention would have force, but all other things were not at test time equal.
[51] By test time and for some three months beforehand, Fantasea had been informed by Harbour City Ferries of the termination of the relevant contract. As at the test time, it is uncontroversial that Fantasea was not performing the Harbour City Ferries work. It had no contract to perform the work and had stopped performing it. Vessels performing that contracted work in the preceding period were no longer at test time to be deployed for work to which the contract related. We agree with Fantasea that the Deputy President would have erred had he taken the preceding 12 months' Harbour City Ferries work data into account.
[52] The Deputy President was correct not to do so and no appealable error is disclosed. It follows that ground 7 fails.
[53] By ground 6 of the notice of appeal the CFMMEU contends the Deputy President erred, in considering the question of the award coverage by giving vessel utilisation and revenue data more weight than the evidence of the extent of work performed by employees operating within each industry.
[54] The Deputy President explained his use of relevant vessel and labour utilisation data in arriving at his ultimate conclusion as to award coverage in the following passages of the Interim Decision:
"[67] In determining whether an employer is operating vessels wholly or principally in the Marine Tourism Industry, and is wholly or substantially covered by the Marine Award, my view is that a combination of actual vessel utilisation (across the whole of an employer's business) as at Test Time, and revenue percentages as at Test Time, is the appropriate method for assessment. This is not to say that the assessment of labour hours is irrelevant, or ought to never be used for assessment purposes. It is simply to recognise that vessel utilisation, and the revenue from same, are likely, in my view, to be a more simple and accurate gauge of business activities, and their proper characterisation, for the purposes of award coverage determination.
[68] On the evidence in this case, whether one makes the business activity assessment (as at Test Time) of Fantasea's Marine Tourism Industry operations from the perspective of vessel utilisation (conservatively 70.34 percent), P revenue (69 percent), or labour hours (64 percent), the conclusion is that Fantasea operates a substantial majority of its vessels (on an overall basis) wholly or principally in the Marine Tourism Industry, and is therefore wholly and substantially covered by the Marine Award."[37]
[55] As we have earlier explained, the definition of marine tourism and charter vessel industry focuses attention on the operation of vessels. An assessment of whether vessels are operated wholly or principally for one or more of the purposes set out in the definition may be informed by a range of data. Plainly evidence about the extent of vessel activities, whether in terms of revenue, working hours or numbers of services or other vessel utilisation data will be relevant. Whether vessel utilisation and revenue data on the one hand provides a more accurate gauge to the operation of vessels than labour hours utilisation on the other depends on the quality of the data and what it actually discloses in the context of the operation of a vessel by an employer as a whole.
[56] The Interim Decision discloses that the Deputy President considered that a combination of actual vessel utilisation (across the whole of an employer's business) as at test time, and revenue percentages as at test time, was the appropriate method for assessment. The Deputy President buttressed his use of this data in preference to labour utilisation data on the basis that he considered it is a more accurate gauge of Fantasea's business activities for the purposes of assessing the industry in which it operated for the purposes of award coverage.
[57] The vessel utilisation data in evidence before the Deputy President shows the relative percentage use of a particular vessel for touristic and non-touristic work. Undoubtedly Fantasea will have categorised that data into that which it considered to be touristic and non-touristic work. The CFMMEU seeks to reconstruct this data and to describe some of these touristic services as being "ferry work" and therefore caught by the exclusion. For reasons earlier explained, such a description misunderstands the way in which the exclusion operates. A vessel principally operated for a touristic purpose is not excluded simply because it operates pursuant to a timetable and as an incidence of the timetable some passengers or commuters also board the vessel for the purpose only of being transported from one location to another.
[58] As Fantasea contends, the CFMMEU's contentions in relation to the vessel utilisation data is that the vessel utilisation data was conditioned on the Respondent's characterisation of the services it offered. The CFMMEU contends that if we take the view that the Deputy President should not have found that the Broken Bay service or the Shopper Hopper cruise fell within the marine tourism and charter vessel industry, then the vessel utilisation characterisation for both the Riverside Avalon and the Fantasea Explorer (which are used to provide these services) would be reversed, and the Deputy President's conclusion at [68] of the Interim Decision could not be maintained.
[59] For the reasons earlier given, we do not consider the Deputy President erred in his assessment of the operation of the vessels providing the Broken Bay and Shopper Hopper services. Consequently, we are not persuaded the CFMMEU has shown appealable error in this regard.
[60] As to the revenue data, the CFMMEU contends that the data on which the Deputy President relied contained the totals of Fantasea's revenue by the activity areas for the 12 month period up to and including August 2019. Once the CFMMEU's criticism of the data that relates to the exclusion of the Harbour City Ferries work and the description of the Shopper Hopper service is taken away (for the reasons earlier given), the balance of the CFMMEU's criticism amounts to little more than a complaint that the Deputy President gave precedence to the revenue data in determining the question of proportionate award coverage.
[61] Whilst we accept that an employer's generation of revenue will not always be a determining factor in assessing the purpose for which an employer's vessels are operated, it is plainly correct that revenue is in many cases likely to be an important indicia of the business activity of an employer and a good guide to the purpose for which the vessels of an employer are deployed. We can see no error in the Deputy President's choice to rely on that data. In any event, as the Deputy President set out at [68] of the Interim Decision we would reach the same conclusion by whichever of the relative measures (including labour hours) that were available in the evidence.
[62] For these reasons appeal ground 6 also fails.
[63] It also follows from the foregoing that appeal ground 1, which the CFMMEU describes as the ultimate error for which it contends, also fails. Once the Deputy President concluded that Fantasea was in the marine tourism and charter vessel industry, it followed the Marine Tourism Award covered Fantasea and its employees in classifications for which the award made provision. This coverage was to the exclusion of any other modern award. Ground 1 is advanced on no other basis than that the error alleged by that ground follows from one or more of the other appeal grounds succeeding.[38] Since each ground has failed, there is no appealable error disclosed. Consequently, as Fantasea and the relevant employees (award covered and prospective award covered) were at test time wholly or substantially covered or would be covered by the Marine Tourism Award, the Ports Award did not and could not cover Fantasea and the relevant employees by reason of clause 4.1(g) of the Ports Award.
[64] The Deputy President therefore correctly excluded the Ports Award from his assessment of whether the Agreement passed the BOOT.
[65] The proper construction and application of the coverage provisions of the Marine Tourism Award and the Ports Award, albeit in the context of the application of the BOOT to a single-enterprise agreement, raises an issue of importance and of more general application. We therefore grant permission to appeal.
[66] We would grant permission to appeal but for the reasons stated we would dismiss the appeal.
[67] We order as follows:
Permission to appeal is granted;
The appeal is dismissed.
[1] Appellant's outline of submissions at [7]
[8] [2020] FWC 2720 at [33](a)
[21] Appeal Book Tab 52 at pp.475-477 [22]-[29]
[23] Appellant's Outline of Submissions (20 July 2020) at [25]
[28] Appeal Book Tab 22 at p.286 [44]
[29] [2020] FWC 2720 at [51]- [53]
[30] Appeal Book Tab 22 at p.280 [22]
[34] Appeal Book Tab 22 at p.280 [22]
[35] [2020] FWC 2720 at [58]- [61]
[36] Appeal Book Tab 22 at p.281-2 [28]
[37] [2020] FWC 2720 at [67]- [68]
[38] Appellant's Outline of Submissions (20 July 2020) at [27]
Printed by authority of the Commonwealth Government Printer
Construction, Forestry, Maritime, Mining and Energy Union
Fantasea Pty Limited; The Australian Maritime Officers' Union [2020] FWCFB 4443