Application for approval of the Curtis Island Services Pty Ltd Enterprise Agreement 2025

[1] Curtis Island Services Pty Ltd ("the Employer") has applied for approval of an enterprise agreement known as Curtis Island Services Pty Ltd Enterprise Agreement 2025 ("the Agreement"). The Application was made under section 185 of the Fair Work Act 2009 ("the Fair Work Act"). The Agreement is a single enterprise agreement.

[2] The Australian Institute of Marine and Power Engineers (AIMPE) and The Australian Maritime Officers' Union (AMOU) filed declarations supporting the approval of the Agreement. The Construction, Forestry and Maritime Employees' Union (MUA) filed a declaration opposing approval.

[3] There were casuals in the voting cohort. The Employer submitted that all casual employees who were employed at the time of the access period had been included in the vote. They provided a declaration of Vero Voting in that regard. The declaration said, inter alia:

"Vero communicated to all 70 employees, including 24 causals, via both email and SMS from the beginning of the access period on Friday, 23 May, through to the ballot closing date on Monday, 2 June.

1. the 24 casual employees were part of the 70 employees provided to us in a declared eligible list of voters,

2. all 70 employees (including the 24 casuals) received communications from Vero regarding the ballot via email and SMS Message,

3. and from these 24 casuals, 18 casual employees participated in the ballot process."

[4] The MUA submitted that it is incumbent on the Employer to demonstrate that each employee who was employed at the time whose employment would be covered by the agreement was given an opportunity to vote on the approval of the agreement and only those employees employed at the time were asked to approve the agreement. It submitted that the declaration from Vero did not establish that the casual employees in the voting cohort were "employed at the time" and entitled to vote to approve the agreement. Further, it does not cast any light on the question of whether there were any other casual employees "employed at the time" who were not included in the "eligible list" of voters provided to Vero Engagement and Voting Solutions Pty Ltd. It noted that the Agreement was approved by a vote of 42 in favour to 19 against with 9 abstentions. In the circumstances, it submitted the Commission could not be satisfied that the Agreement has been genuinely approved.

[5] In response, the Employer referred to the Vero declaration, saying that the 24 casual employees on the eligible voter list were current employees as of the snapshot date, having been engaged and worked within the active roster cycle. It submitted these employees had legitimate expectations of further engagement and were paid for recent work - meeting the threshold articulated in Re Shop, Distributive and Allied Employees Association [2019] FWCFB 7599. It submitted that the MUA had provided no evidence that any eligible casual employee was excluded from the vote. It affirmed that all employees who had been employed and on active rosters at the time of the vote had been provided voting access.

[6] As to the question of whether any casual employees who were eligible were incorrectly excluded from the voter roll, I observe that the employer's declaration (F17) had indicated that there were 70 employees covered by the Agreement. There is nothing before me to indicate that there were any casual employees other than those included in the total of 70. The employer has since confirmed it included all relevant employees on the roll. The MUA did not draw my attention to any such person and there seems to be no reason to speculate that the employer's declaration is untrue or incorrect in this respect.

[7] As to the question of whether any casual employees who were ineligible were incorrectly included in the voter roll, the Employer's declaration indicated 61 people had voted, of whom 42 had voted in favour of approval. This was also reflected in the Vero declaration provided by the Employer. Given those numbers I am satisfied that even if none of the casuals who voted had been eligible to do so a majority of the remainder still would have been obtained (24 out of 43).

[8] The Agreement included a typographical error in cl 22.2, which referred to cl 11.2 when it ought to have referred to cl 12.2. The Employer sought to deal with these issues by filing a corrected copy of the Agreement. I am satisfied that the correction to clause 22.2 should be made and that it is appropriate to do so pursuant to section 218A of the Fair Work Act. The corrections to clause 22.2 are made in accordance with the amended copy of the Agreement filed by the Employer on 15 July 2025.

[9] Noting clause 7.2 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards ("NES") in the Fair Work Act will prevail where there is an inconsistency between the Agreement and the NES.

[10] The Employer and the MUA were in dispute as to whether the Agreement passes the Better Off Overall Test ("the BOOT") in relation to casual employees.

[11] The Employer submitted that under clause 12.20.1 of the Agreement, casual employees are paid double the base hourly rate of permanent employees across all days, not just for Sunday or public holidays. It said no casual employee is employed solely for the purpose of working on public holidays or Sundays. The Employer submitted that although the Agreement may produce a lower rate for isolated Sunday or public holiday shifts, it delivers higher total earnings under realistic work patterns. It said hypothetical scenarios where an employee works exclusively on such days are extreme and not representative of actual rostering practices.

[12] It submitted this rate had been introduced in 2018 in compliance with an undertaking given at the time. It submitted the 25% casual loading had been "thoroughly factored into" this arrangement and that it fully satisfied the BOOT requirements.

[13] The MUA submitted that Clause 13.7 of the Agreement provides that the total remuneration payable to a casual deckhand employee is set out in Schedule 1 of the Agreement which provides for a rate of $27.60 per hour. This amount includes a casual loading of 25% and any other allowances payable under the Ports, Harbours and Enclosed Water Vessels Award 2020 (the Award) save for any allowance expressly set out in the Agreement.

[14] The MUA acknowledged that the minimum engagement of a casual deckhand employee is 12 hours and for each day of work, a casual employee is paid a day of leave of 12 hours at the rate set out in Schedule 1 of the Agreement. The effect of this is a casual deckhand receives an effective rate of $55.20 per hour (including the day of leave) for each 12-hour shift. This payment incorporates all penalties, loadings and allowances payable under the Award.

[15] It submitted the Award relevantly includes the following hourly rates of pay for casual deckhands:

[16] It submitted that, further, the Award relevantly includes the following hourly rates of pay for overtime performed by casual deckhands:

a. Overtime Monday to Friday - first 3 hours: $51.94

b. Overtime Monday to Friday - after 3 hours: $66.78

[17] It submitted that clause 18.1 of the Award provides that "Overtime is payable to employees for any time worked outside of ordinary hours on a Monday to Friday (except a public holiday)," and that clause 12.2 of the Award provides that "Ordinary hours may be worked between 6.00 am and 6.00 pm for up to 8 hours per day, Monday to Friday inclusive."

[18] The MUA also referred to section 62 of the Fair Work Act as to hours of work.

[19] The MUA submitted that having regard to the foregoing the Agreement provides a lesser hourly rate under the Agreement than under the Award for work performed on a Sunday, on a Public Holiday and after 3 hours of overtime outside the spread of ordinary hours and after 41 ordinary hours in any week. It submitted the Agreement may provide a lesser hourly rate under the Agreement than under the Award for work performed on a Saturday depending on what allowances would ordinarily be payable under the Award. Any casual deckhand engaged to work a 12-hour shift on a Sunday or a Public Holiday would not be "better off overall" than if they were engaged under the Award, and this had been conceded by the Employer.

[20] Further, it submitted that a casual deckhand engaged to work a 12-hour shift outside the hours of 6.00am to 6.00 pm on a Monday to Friday will not be "better off overall" than if they were engaged under the Award.

[21] The MUA also submitted that it is not clear that a casual deckhand engaged to work five 12-hour shifts from Monday to Friday would be "better off overall" than if they were engaged under the Award. It said this would depend on the spread of hours worked by any casual deckhand so engaged and on what allowances would ordinarily be payable under the Award.

[22] The MUA referred to the Employer's submission that "[The concerns] overlook the totality of the pay arrangements. No casual employee is employed solely for the purpose of working on public holidays or Sundays. Although the Agreement may produce a lower rate for isolated Sunday or public holiday shifts, it delivers higher total earnings under realistic work patterns. Hypothetical scenarios where an employee works exclusively on such days are extreme and not representative of actual rostering practices." In response it submitted:

"24. With respect, the submission of the Applicant above is unsupported by any probative evidence of so called "realistic work patterns" and "rostering practices". This is especially so where the Agreement makes no provision for any roster other than a roster "developed in consultation" with employees in accordance with Clause 15 of the Agreement."

[23] The MUA also noted that the employer had not provided evidence as to what allowances would ordinarily be payable under the Award but are incorporated into the rate for employees.

[24] The MUA contended that, in these circumstances, the Commission cannot be satisfied that any casual deckhand engaged under the Agreement would be better off overall than if they were engaged under the Award.

[25] In reply the Employer submitted that under the Agreement the remuneration schedule for casual deckhands includes:

• A system where for every 12-hour shift worked, employees receive an equivalent 12 hours of paid time, resulting in an effective average rate of $55.20/hour.

[26] It submitted this model delivers a significantly higher base remuneration than the Award minimum hourly rate for ordinary Monday-Friday hours, particularly when considered across a representative work cycle, rather than isolated high-penalty shifts. It submitted this structure was introduced to comply with an undertaking given in support of approval of the Curtis Island Services Pty Ltd Enterprise Agreement 2018, and had been implemented in its enterprise agreements and payroll systems for over seven years.

[27] It submitted this arrangement ensures that casual employees are better off overall, when assessed against the BOOT standard. It submitted the relevant question is whether each reasonably foreseeable employee is better off overall, not whether a hypothetical employee who works exclusively on Sundays or public holidays is better off. As to reasonably foreseeable employees, it said:

• Casual employees are engaged across rolling rosters that include both weekdays and weekends, depending on operational needs;

• Each 12-hour shift worked attracts an additional 12 hours of paid time, resulting in gross earnings well above Award benchmarks when assessed across a typical work cycle;

• No casual employee is engaged solely for public holiday or Sunday work.

[28] By correspondence of 8 July 2025 my chambers had indicated that the approval application would be determined on the papers subject to any order or direction to the contrary, and invited any party wishing to request a mention or hearing to do so no later than Friday, 18 July 2025. No-one sought an oral hearing, and the MUA did not contradict the Employer's reply regarding the regular work pattern.

[29] In the circumstances I consider that reasonably foreseeable casual employees would be better off under the Agreement.

[30] I had also sought submissions as to part-time employees and trainees, in relation to the BOOT. The Employer has provided an undertaking in relation to part-time employees, and an undertaking in relation to trainees.

[31] The Employer has given written undertakings in accordance with section 190 of the Fair Work Act. The undertakings are attached as Annexure A to this decision. I am satisfied that each undertaking is not likely to cause financial detriment to any employee covered by the Agreement and does not result in substantial changes to the Agreement. Each undertaking is taken to be a term of the Agreement.

[32] With the undertakings now given, and after having regard to the Statement of Principles on Genuine Agreement as well as the application and declarations filed in this matter, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Fair Work Act, as are relevant to this application for approval, have been met.

[33] Each of AIMPE, the AMOU, and the MUA lodged a declaration in the prescribed form[1] giving notice under s.183 of the Fair Work Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Fair Work Act, I note the Agreement covers AIMPE, the AMOU and the MUA.

[34] The Agreement is approved and will operate in accordance with section 54 of the Fair Work Act. The nominal expiry date of the Agreement is 14 November 2029.

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