Noorton Pty Ltd t/ a Manly Fast Ferry [2018] FWC 4638 | Case summary

Noorton Pty Ltd t/ a Manly Fast Ferry [2018] FWC 4638 | Case summary | Zoe

[10]

[3] During the initial contract period of 15 months, Manly Fast Ferry operated alongside the State Government operated Sydney Harbour Ferries on the Circular Quay to Manly service. Competition for these harbour ferry services became more intense from early 2010, until the Government in 2014, decided to seek a long term contract for only two ferry operators on the Circular Quay - Manly service, one of which would be the now privately operated Harbour City Ferries. The other operator was Manly Fast Ferry, which won a seven year contract commencing on 1 April 2015.

[4] The applicant decided to replace the old MFF Ferry Agreement with a new agreement, intended, at the time, to only cover the ferry operations. Negotiations for the new agreement commenced in April/May 2015 with the Maritime Union of Australia (the 'Union'), despite the amalgamation of the Union with the Construction, Forestry, Mining and Energy Union and the Textile, Clothing and Footwear Union of Australia in March this year, I shall continue to refer to the Union as the MUA. In cutting to the chase, negotiations have been ongoing for over two years since that time until the filing of this application on 24 July 2017 - the applicant's fourth attempt at having an agreement approved. Throughout this period there have been various related proceedings before at least three other members of the Commission and two earlier votes of employees which resulted in iterations of the Agreement being lodged in the Commission, but subsequently withdrawn by the applicant.

[5] Throughout this period the central dispute between the applicant and the Union has been, and continues to be, what Modern Award should apply to the employees under a single agreement covering both the ferry and tourism operations; namely:

the Ports, Harbours and Enclosed Water Vessels Award 2010 [MA000052] '(Ports Award'); or

the Marine Tourism and Charter Vessels Award 2010 [MA000093] ('Marine Tourism Award').

[6] Against the objections of the Union, the applicant put the proposed Agreement to a secret ballot vote of 49 employees to be covered by the Agreement (all of whom are casual) on 11 July 2017. By a narrow margin of 23 for and 21 against, the Agreement was approved. The application for approval (F16) filed by Mr Richard Ford, Managing Director, identified the applicant as Noorton Pty Ltd t/a Manly Fast Ferry.

[7] In the accompanying statutory declaration and ten annexures dealing mainly with the pre-approval steps and indicative rosters (Form F17), Mr Ford identified the two Modern Awards as the relevant reference instruments for the respective functions of ferry services and marine tourism operations. Mr Ford set out a number of benefits and conditions in excess of, or not provided for by the Modern Awards and a number of less beneficial terms. He attested that the Agreement satisfied the Better Off Overall Test (BOOT) whether the test was applied against the Ports Award or the Marine Tourism Award.

[8] In an F18, filed by Mr A Jacka on behalf of the Union, on 8 August 2017, the Union did not support the approval of the Agreement for the following reasons:

(a) The Commission cannot be satisfied that the notice requirements, pursuant to s172(3) of the Act have been met.

(b) The Commission cannot be satisfied, pursuant to s186(2)(a) and s188 of the Act that the Agreement has been 'genuinely agreed' to by the employees covered by the Agreement.

(c) The Commission cannot be satisfied that the group of employees to be covered by the Agreement was 'fairly chosen' (s186(3)).

(d) The Commission cannot be satisfied, pursuant to s186(2)(d) of the Act that the Agreement passes the Better Off Overall Test.

[9] Unsurprisingly, the Union disagreed with the employer's F17 on the grounds that:

(a) the notification time was not 6 June 2017. There was no valid notification to employees;

(b) the reference instrument is the Ports, Harbours and Enclosed Water Vessels Award 2010 only. The Marine Tourism and Charter Vessels Award 2010 does not cover the employer or any of the employees covered by the Agreement; and

(c) the Agreement does not pass the Better Off Overall Test.

[10] By this time the application was under review by the Commission's Enterprise Agreement Triage Team and a report was prepared for the Panel Head, Deputy President Gostencnik on 24 September 2017. A number of concerns were raised by the Deputy President and communicated to the parties on 5 October 2017. The applicant provided certain undertakings in respect to span of hours and the Union continued to press its objections (as above). On 20 October 2017 the applicant's solicitors, Holman Webb (Mr Stephen McCarthy) provided a 22 page response to further concerns raised by the Triage Team and the Union. On 27 October 2017 the Union advised that it continued its opposition to the approval of the Agreement and requested an arbitration of the matter. The application was then remitted to me for hearing. On 7 November 2017, I issued directions for a hearing on 18 and 19 December 2017. However, due to the unavailability of key witnesses, the hearing by consent, was relisted for 5 and 6 February 2018. In the meantime, the Commission, as presently constituted, heard and determined an application filed by the Union, pursuant to s 483AA of the Act, seeking orders for access to non-member records; see: The Maritime Union of Australia [2017] FWC 6228. These proceedings related to a dispute filed by the Union in which a determination was sought that only the Ports Award applied to the employees of the applicant. This dispute remained unresolved, but ultimately was overtaken by the filing of this application for approval of the Agreement.

[11] The hearing dates were further adjourned until 12 and 13 February 2018. Mr S McCarthy, Solicitor appeared for the applicant and Ms L Doust of Counsel, with Mr Jacka appeared for the Union. Both parties were granted permission to be represented by lawyers, pursuant to s 596 of the Act. The hearing days were taken up with oral evidence and cross examination of Mr Ford. Directions for the filing of final submissions were issued, but extended, by consent, until the final submission was filed by the applicant on 17 April 2018.

[41]

(c) In relation to the above four instances where the Agreement rates are below the comparative Modem Award rates, I would observe that when the two Modern Awards rates are "blended and averaged", there is then only one circumstance where the Agreement's rates are not higher than the averaged two Award rates, and that is in the circumstance of permanent employees working ordinary hours rate on a Sunday.

[23] All of this material was provided to the Union and in various proceedings before Commissioner Cambridge, Vice President Watson and Deputy President Dean. Mr Ford asserted that in every instance under an indicative four week roster, every employee, whether Casual, Part-Time or Full-Time employees, will be 'better off' under the Agreement.

[24] Mr Ford said that the only criticism the Union had ever made of the calculations was that the only work considered 'marine tourism' was 'whale watching'; a position consistently rejected by the applicant. Nevertheless, for present purposes, Mr Ford applied the Union's approach and again in every case, employees will be 'better off overall'. Increases flowing from the Agreement (1 December 2017) will continue to ensure employees are 'better off overall'.

[25] Mr Ford reiterated that, with one exception (a small number of Host/Hostess employees who are exclusively in marine tourism) the applicant operates the same vessels with the same crews in two different industries. The vast bulk of the employees are classified as General Purpose Hands (GPHs).

[26] Mr Ford noted that under the relevant State legislation (Passenger Transport Act 2014) the only ferry service conducted by the business is the contracted Circular Quay/Manly service. None of the other services conducted by the applicant are 'technically' ferry services. It is not correct, as the Union contends, that any 'timetabled service is effectively a ferry service'. This has been explained to the Union on many occasions. Support for the applicant's position arises from other legislative sources (Certificates issued under the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (Cth) and Marine Orders 503 and 504 (Cth)). The effect of the certificates is demonstrated by its vessel, Ocean Dreaming II as follows:

[47]

[28] Mr Ford observed that although the Circular Quay to Darling Harbour service is not gazetted as a 'ferry service' under the State Act, the applicant offered a concession to the Union to treat it as a 'ferry service'. This is reflected in the coverage clause and the Agreement (Cl 5).

[29] Mr Ford's evidence dealt with the applicant's responses and undertakings offered to the Commission after requests for further particulars from DP Gostencnik. Mr Ford stressed that no employee performs exclusively ferry work and that the Ports Award is not the only Award to be considered for the purposes of the BOOT.

[30] Mr Ford made particular reference to cl 12(g) and stated that this sub clause was not a 'make good' provision to ensure BOOT compliance, because the Agreement already meets the BOOT. It is just a means by which an employee can check that the Agreement rates are being paid correctly. Mr Ford also addressed the Union's claim that the permanent part-time provisions do not match the corresponding provisions in the Ports Award. Mr Ford said firstly, that the Union ignores the part-time provisions in the Marine Tourism Award and in any event, the Agreement's part-time provisions more than satisfy the BOOT in that they provide:

(a) a minimum of 4 ordinary hours work on any day;

(b) a maximum of 11 ordinary hours on a day;

(c) a guaranteed minimum of ordinary hours for a Part Time Employee of 40% of a full time employees 38 ordinary hours over a 4 week roster cycle i.e. a minimum of 64 ordinary hours per 4 weeks or an average of a minimum of 16 ordinary hours each week;

(d) the right of an employee to seek an increase in their minimum percentage arrangements where their current minimum% is exceeded for 6 months or more;

(e) the protection that an employee's guaranteed minimum % can only be reduced with the employee's agreement;

(f) that each extra hour worked is paid for at the 'Hourly equivalent Salary Rate' prescribed by the Agreement, except for additional hours worked that are in excess of:

11 hours on any day;

48 hours in a week;

96 hours In a fortnight;

52 hours in a 4 week pay calculation period;

[53]

[32] Mr Garrett has responsibility for representing the industrial interests of members of the Union. He has extensive experience and practical knowledge of the maritime industry and is familiar with the history and operation of both Modern Awards. Mr Garrett has extensive experience in dealing with safety, industrial, government and regulatory issues affecting maritime workers operating in, or around Sydney Harbour, and he negotiated the 2004, 2006, 2012, 2014 and 2016 Agreements covering agencies and companies operating Sydney Ferries.

[33] On behalf of the Union, Mr Garrett opposed the application to approve the Agreement. He was concerned that the Agreement does not comply with the statutory requirements under the Act, and undercuts the entitlements of employees when compared to the Ports Award. He was particularly concerned that it is now suggested that Noorton Pty Ltd is the employer of the employees, despite his dealings with Manly Fast Ferry Pty Ltd over recent times. At the time, Mr Garrett took the view, despite the applicant applying one rate for services between Circular Quay and Manly and a different rate for off peak services, they were all ferry services, covered by the Ports Award.

[34] Mr Garrett included in his evidence the three NERRs issued by the applicant on 29 April 2015, 14 September 2015 and 26 April 2016. Mr Garrett said that on 19 December 2016 when a proposed agreement was submitted for approval by the Commission (Manly Fast Ferry Pty Ltd - Sydney Harbour Services - On Board Crew - GPHs and Hosts Enterprise Agreement 2016) Mr Ford swore a statutory declaration attesting to Manly Fast Ferry Pty Ltd as the true employer of the employees. Mr Garrett had understood this to be the case because the applicant had a contract with the NSW Government to deliver fast ferry services between Circular Quay and Manly. Mr Garrett's own research disclosed that as at 19 June 2017, Noorton Pty Ltd was not registered as trading under the name of Manly Fast Ferry. This approval application was discontinued by the applicant on 13 February 2017.

[35] Mr Garrett said that on 23 February 2017 Manly Fast Ferry issued another NERR to employees for a proposed agreement in respect to employees that are employed by Manly Fast Ferry as either a:

- General Purpose Hand (GPH);

- Host/Hostess;

- Junior General Purpose Hand (GPH); or a

- Junior Host/Hostess;

[61]

[39] Mr Garrett observed that all of the applicant's Sydney Harbour services operate according to a timetable. He set out each of the following services and their timetables as at 14 June 2018:

(a) Manly - Circular Quay

(b) Manly - Darling Harbour

(c) Manly - North Sydney

(d) Manly - Pyrmont Bay

(e) Manly - Watsons Bay

(f) Harbour Beaches Ferry

(g) Eco Hopper

(h) Whale Watching (Mr Garrett agreed that whale watching is seasonal, but it is still timetabled between May and December).

[40] It was Mr Garrett's evidence that the applicant has a high and regular turnover of employees. He estimated that in a period of two years there has been some 200 additional employees. Mr Garrett claimed the applicant hired a number of new casual staff immediately prior to the Agreement vote. He did not expect they would continue to be employed or be covered by the Agreement. Further, he was concerned that some of the employees may not have been entitled to vote, if they were employees of Manly Fast Ferry, and not Noorton.

[41] Mr Garrett responded to Mr Ford's statement as follows:

(a) Mr Ford regularly voiced his concerns as to the correct Award to be applied, as it was apparent that he had costed his business on the basis that the Marine Tourism Award applied to all, or most of the work. Mr Garrett said he would not have agreed to any arrangement which may have disadvantaged employees as to their rightful Award entitlements.

(b) Mr Ford was 'cherry picking' the lowest conditions from each of the Awards to be included in an Agreement. He gave an example of Juniors being included when there is no provision for Juniors in the Ports Award.

(c) Mr Garrett disagreed that the application for approval of the then Agreement was withdrawn in December 2016 because of the 'opposition, objection and pressure' from the Union. It was because the NERR was non-compliant.

(d) Mr Garrett had regularly challenged the accuracy of the tables and rosters provided by the applicant. He maintained that 90% of the work is ferry work.

[42] In a reply statement, Mr Ford said that the Union had been aware for years that Noorton Pty Ltd is the employer. For example in dispute proceedings in matter C2017/3255 this was made clear in documents (payslips) provided to the Commission in 2017, for a number of employees for the period between May - July 2017. The Union even accepted Noorton was the employer when it first issued an NERR in April 2015. Nevertheless, the business is generally known as Manly Fast Ferry.

[43] Mr Ford explained the business strategy which originally began with establishing a new agreement between employees and Noorton Pty Ltd. It became an agreement between employees and the related entity of Manly Fast Ferry for ferry and marine tourism work. Manly Fast Ferry then returned to the original intention of an agreement between employees and Noorton Pty Ltd as a result of 'commercially confidential' matters, coinciding with the final stages of the Agreement negotiations in June/July 2017. It resulted in a decision to retain the structure of having Noorton as the employer of all employees. This is why the NERR issued on 6 June 2017 was issued by Noorton Pty Ltd.

[44] Mr Ford denied that Noorton Pty Ltd had done nothing to initiate bargaining before it issued the 6 June 2017 NERR. He said that after Mr Garrett had declared bargaining at an end, he communicated directly with the employees for the purpose of negotiating and finalising an agreement. These communications included SMS text messages to employee representatives, Beau Chippindale and Nicola Spata. On 2 June 2017, the applicant sought legal advice as to the way forward. This resulted in the NERR of 6 June 2017.

[45] Mr Ford responded to criticism that the applicant had not demonstrated how the employees who were to vote, were selected. Noorton Pty Ltd uses a roster system called easyEMPLOYER to manage the roster and prepare timesheets for payroll processing. The system categorises employees according to classifications GPH, Hosts, Sales, Master etc.

[46] Mr Ford had downloaded the list of current GPH and Host employees on the easyEMPLOYER system at the time the invitation to vote was distributed. He said that if the Commission required further details, the applicant would be willing to do so, subject to the employees' names being kept confidential.

[47] Mr Ford rejected the allegation that there had been a substantial turnover of labour. At the time of the vote 31% of the employees had been engaged for over two years and a number of other former GPH employees had been promoted to Master positions.

[48] Mr Ford set out the Company structure as follows:

[76]

[53] Mr Ford conceded that he was incorrect in his statements when he said there had been four votes of employees. He explained there were two actual votes and two other occasions, where the vote was notified, but later cancelled.

[54] Mr Ford agreed he commenced as a Director and Company Secretary on 19 July 1995. The Company was established at his instigation. As a result of a recent transaction, he no longer has any shares in Noorton Pty Ltd. His transfer of shares was to NRMA Marine Pty Ltd (NRMA Marine) which is now the major shareholder in the Company. He remains General Manager of Noorton, as an employee of NRMA Marine and reports to the Board, which has established a company known as Manly Fast Ferry. He said he did not include this development in his second statement, because he understood the Commission was only concerned with the circumstances leading up to, and the date of the vote in July 2017.

[55] Mr Ford is responsible for industrial relations for the applicant. He could not be sure, without checking, whether he remained a director of Noorton Pty Ltd or Manly Fast Ferry. Mr Ford accepted that, at one point, Noorton Pty Ltd held all the shares in Manly Fast Ferry Pty Ltd, but he could not be sure of the new structure, now NRMA Marine is involved.

[56] Mr Ford confirmed that during the period from April 2015 to July 2017 he was in charge of managing the applicant with his brother. He is the person most across Manly Fast Ferry's industrial and employment affairs. He understood that Transport NSW had agreed for the assignment by Manly Fast Ferry of the long term ferry service contract to NRMA Marine. Manly Fast Ferry also has certain regulatory provisions in respect to Darling Harbour and Milsons Point ferry services.

[57] Mr Ford said that in respect to the applicant's vessels Seacat I and Seacat 2, only one of them is in operation at the present time. Mr Ford claimed he could not source the survey certificate for Seacat I in the time ordered under a Notice to Produce. He could continue to make inquiries and find the survey certificate and produce it. He had previously not provided the survey certificate for the vessel 'Totally Wild', because it is not covered by the Agreement. It has no GPHs or hosts on board.

[58] Mr Ford was asked about the lists of employees who voted in the ballot for the Agreement's approval. He claimed the way the applicant rosters employees to perform shifts is 'commercially confidential'. Nevertheless, he agreed the rosters contain shifts that would not be covered by the Agreement.

[59] Ms Doust pressed Mr Ford on the legal basis on which he had signed the Agreement. Mr Ford asserted that the legal name of the employer was Noorton Pty Ltd, but people refer to, and associate it as Manly Fast Ferry. The employees say they work for Manly Fast Ferry, but their payslips, group certificates and rosters come from Noorton Pty Ltd. Mr Ford accepted that when he attested to the F17 he had indicated that Many Fast Ferry was the name the Company traded under. Mr Ford was unaware that a business trading under a business name, must have the business name registered. Mr Ford added that Manly Fast Ferry Pty Ltd is wholly owned by Noorton Pty Ltd. However, he conceded Manly Fast Ferry is not registered as the trading name. Mr Ford explained that Noorton Pty Ltd derives revenue from tourism services and Manly Fast Ferry earns revenue from the ferry services. Mr Ford was shown various references in documents, including an earlier draft agreement and emails, purporting to show Noorton Pty Ltd, trading under the name of Manly Fast Ferry. A letter to employees of 19 June 2017 advising, inter alia, of the 'access period' for the new Agreement and the NERR, were issued as being on behalf of Noorton Pty Ltd t/a Manly Fast Ferry. In this exchange with Ms Doust, Mr Ford said:

[80]

[62] This proposal was not implemented. However, Mr Ford understood that once the Agreement was in place the applicant could transfer employees to another Company, providing the employees' existing rights and entitlements were maintained. He believed that could happen now. The employees were not asked about this at the time (July/August 2015) because the proposition did not proceed. Mr Ford said that around 14 September 2015 employees of Noorton received an NERR, although that notice stated Manly Fast Ferry was the employer and bargaining with them would be 'the arrangement going forward'. It wasn't until May 2017 that Mr McCarthy explained that the NERR had to be reissued under the name of Noorton Pty Ltd. There had been a communication breakdown as to timing of when the transfer would occur. No steps were taken between September 2015 and 26 April 2016 to implement the decision and no consultation was had with employees about transferring them to a different entity. It did not happen.

[63] Mr Ford insisted Noorton was, and always has been the employer of the employees. Noorton remained the employer when the 26 April 2016 NERR was issued to GPH and Hosts engaged in marine tourism activities. Despite the NERR detailing Manly Fast Ferry as the employer, it was still the intention, at this point, to move in that direction. The same applied to another NERR issued on 20 May 2016. Mr Ford agreed that all of the documents issued to employees around 25 November 2016, maintain that Manly Fast Ferry was the employer. Mr Ford acknowledged that in the documents provided to the Commission, all information must be truthful. In any event, the application at that time was discontinued.

[64] Mr Ford conceded that a new NERR issued on 23 February 2017 continued reference to Manly Fast Ferry as the employer. From this time until June 2017, the Union continued to bargain, but had not asked to bargain with Noorton.

[65] In respect to the negotiations with Mr Beau Chippendale, Mr Ford agreed he was a Master at the time of the vote for the Agreement and did not vote. He was however a Deckhand throughout the two and a half years of negotiations. Ms Nicole Spata works in the Darling Harbour office and on the vessels at times as a GPH. She also manages the rosters. Neither Mr Chippendale nor Ms Spata were nominated as employee bargaining representatives. Mr Ford agreed that in his emails to them he continued to refer to Manly Fast Ferry as the employer. Mr Ford did not accept this was a significant issue for employees. They all knew what was meant. He said he was told the legal name of the employer was irrelevant to them and they just wanted an agreement in place.

[66] Questioning then turned to the voting list of employees. Mr Ford had prepared the list from downloaded electronic files. The NERR was issued on 6 June 2017. He informed Mr McCarthy on 19 June 2017 that new employees were being 'added all the time' and he wanted to make sure he captured all eligible employees to vote. He denied this was a reference to new employees added between 6 and 19 June 2017.

[67] Mr Ford was shown a list of 49 names in answer to a Notice to Produce. The document recorded who voted and who did not vote on 11 July 2017. Mr Ford had utilised the rosters to establish if employees worked a shift before, or after the vote, the date employees commenced employment and their last login date. He said the first four columns of the document were downloaded from a company, Simply Voting, and the second four columns were transcribed by him from the applicant's records.

[68] Mr Ford was then asked to compare the voting lists with the actual rosters of employees. In respect to:

[89]

- for the full roster period the employee is on unpaid leave in the United Kingdom. There is no record of the employee being at work prior to the vote. June payslips show the employee worked 16.5 hours as a deckhand, Darling Harbour service 5 hours, Hopper 23 hours.

[69] Mr Ford agreed that Wharf Hands are not covered by the Agreement, but by the old Noorton Workplace Agreement 2009.

[70] Mr Ford said employees move across Sales, Wharf Hand, Deckhand and Host roles depending on the Company's requirements for a particular shift or vessel. In response to questions from me, Mr Ford said that the old Workplace Agreement will continue to apply to employees working on the wharf, until that Agreement is replaced. The employees who move across from the wharf to a vessel will remain covered by two agreements for the foreseeable future.

[71] In further evidence, Mr Ford said he had no access to, and cannot provide any material to identify how an employee voted. The vote was undertaken by an independent company which had been sourced, because it had been used for other agreement votes.

[72] Mr Ford was referred to the service timetable covered by the Manly Fast Ferry contract. He agreed there were changes to the timetable between June 2017 and June 2018. Services were added on weekdays and weekends and wharf departures were changed. Mr Ford said both the ferry services and the tourist services have increased since the vote. Mr Ford said most of the vessels can operate on any route and are subject to change based on timetabling or maintenance requirements. The time sheets will not show this. However, the employee's payslips show which vessel he/she worked on. Services such as Manly/Darling Harbour or Manly/North Sydney and Manly/Watsons Bay are designated 'hopper' services on the timesheets. Mr Ford added that there are additional services added in summer, such as the Harbour Beaches Ferry which does not operate on weekdays. When shown the published timetables on the website annexed to Mr Garrett's statement, Mr Ford agreed that timetabling for ferry services also includes tourist services (hop on/hop off services) and loop services. Whale watching cruises run from May to December. Five vessels can be used, but GPHs do not work on the vessel 'Totally Wild'. Mr Ford said the most accurate records of the work performed is the timesheets, as rosters might change due to the unavailability of a particular vessel.

[73] Mr Ford was asked about the Certificates of Survey of all the applicant's vessels. The following are passenger ferries:

Seacat I and Seacat II (not used on Manly Fast Ferry services)

Arafura Pearl

Ocean Rider (Operates Manly Fast Ferry)

Ocean Trader and Ocean Wave (Operates Manly Fast Ferry and Hopper and Whale Watching)

Ocean Flyer and Ocean Surfer (Operates Manly Fast Ferry, but due to size not used on Hopper service).

[74] Mr Ford agreed that some employees work after 6:00 pm, particularly during summer and some employees work on Sundays and Public Holidays (e.g. Harbour Beach Ferries). Schedule 2 of the Agreement provides for an 'uplift' for afternoon/evening work and Sunday/Public Holiday work, but only to the Circular Quay/Manly and Manly/Darling Harbour Services. This is because these are the only services the Company designates as ferry services.

[75] Mr Ford believed the number of employees since the vote (49) may be 10% higher or lower than 49. Mr Ford claimed that while a number of employees have expressed interest in becoming permanent, the majority, particularly the longer term employees, who secure most of the weekend casual shifts, would prefer to remain as Casuals.

[76] In respect to Mr Ford's conclusion that employees will be 'better off overall' irrespective of which Modern Award is the reference instrument, he was asked about his indicative rosters provided in these proceedings. Part of the calculations relate to Permanent Part-Time employees which were purely speculative, as no employee currently works Permanent Part-Time. The calculations were predicated on all employees electing to become permanent after 6 months, although it was voluntary. These proposals were worked through and discussed in proceedings before Commissioner Cambridge and Deputy President Dean. This model assumed 14 Part-time Permanents, 11 Full-Time Permanents and 4 Casuals.

[77] Mr Ford said that sales employees were not included in the vote, although two who also worked on the vessels, were included. Mr Ford acknowledged the modelling did not include Hostesses or Juniors (the latter cannot be employed serving alcohol). Mr Ford agreed that Juniors could be employed in other roles on the vessel. He had not provided any modelling for Junior employees. Generally, there is one or two GPHs on a vessel.

[94]

[83] In opening, Mr McCarthy put the following propositions:

(a) Noorton Pty Ltd was, and still is the employer of the employees who are employed under the new Agreement.

(b) Noorton Pty Ltd operates the marine tourism services part of the business.

(c) Manly Fast Ferry Pty Ltd operates the ferry services part of the business.

(d) Noorton Pty Ltd wholly owns Manly Fast Ferry Pty Ltd.

(e) Noorton Pty Ltd and Manly Fast Ferry Pty Ltd are related corporations.

(f) At the time of the filing of these Submissions i.e. on 5 March 2018, Richard Ford remains a Director of Noorton Pty Ltd and a Director of Manly Fast Ferry Pty Ltd.

(g) The business operates under the brand name 'Manly Fast Ferry'. This is reflected in the title of the new Agreement.

[84] In dealing with the pre-approval requirements, Mr McCarthy submitted that:

(a) On 6 June 2017 the Applicant issued a replacement NERR to each of the affected employees.

(b) Subsequently each affected employee was issued:

a written notification of the time, place and method of voting to be used on 29th June 2017 - A copy is attachment 4 of the Company's Form F17.

A written request to vote on 30th June 2017 - A copy is Attachment 5 of the Company's Form F17.

(c) The 'access period' was the 7 day period prior to 11th July 2017 i.e. from 4th to 10th July 2017.

(d) The employees were provided with a copy of the terms of the Agreement by Email prior to the commencement of the access period.

(e) The employees were also provided access to the terms of the Agreement throughout the Access Period via the applicant's intranet. The relevant material was posted prior to the commencement of the access period.

(f) The applicant took reasonable steps to explain the terms of the Agreement and its effect on the employees during the access period.

(g) The majority of employees who cast a valid vote agreed to approve the proposed new Agreement on 11 July 2017, which was more than 21 days after the NERR was issued.

(h) The group of employees covered by the Agreement were fairly chosen considering geographical, operational or organizational distinctness. The new Agreement covers all of the Company's on-board vessel crew other than Officers i.e. General Purpose Hands and Host/Hostess employees.

[85] Mr McCarthy submitted that the pre-approval processes and terms of the Agreement met all the statutory requirements under the Act.

[86] In respect to the BOOT, Mr McCarthy noted that unlike agreements where one agreement applies to different groups of employees covered by different awards, or where the major or substantial work is performed in an industry, in this case the approach should be different; see G.J.E. Pty Ltd [2013] FWCFB 1705 at [18] and [21] - [24]. In that case the 28.37% of revenue was sufficient to determine the 'substantial character of the business' was in the retail industry and accordingly, this business was covered under the General Retail Industry Award 2010.

[87] In this case, the business has more than one character operating in more than one industry - ferry industry (65%) and marine tourism (35%). Mr McCarthy put that for the purposes of the BOOT, the Commission would determine, as an exercise of discretion that:

(a) there are two applicable Modern Awards applying at the same time; and

(b) to the same employees who are performing work in two different industries that would be covered by the two applicable Modern Awards in the same workplace at one and the same time.

[88] Mr McCarthy noted that from the outset of negotiations, the Union had demanded and the applicant agreed to have one Agreement covering both industries, providing there would be a 'blending and averaging' approach to ensure a competitive cost structure in the marine tourism sector.

[89] In respect to the two Awards being applicable, Mr McCarthy said the Commission would take into account that:

(a) two 'old' Workplace Agreements exist and still currently operate;

(b) the two 'old' Workplace Agreements will be replaced by one Agreement;

(c) two modern awards operate in different sectors of the maritime industry.

(d) legal and contractual recognition of the distinction between when a vessel operates as a 'ferry' and when the same vessel operates as marine tourism/charter vessel.

(e) Certificates of Survey issued under the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (Cth) also recognise this differentiation.

(f) Statutory recognition of the differentiation as set out in the Passenger Transport Act 2014 (NSW); see s 39(1) and (2).

[90] Mr McCarthy identified a number of examples of tourism services, which do not require a service contract with the NSW Government: lunch, coffee, dinner cruises, jet boats, sailing cruises, shopper hopper services and whale watching. Mr McCarthy submitted that the existence of a timetable, or a vessel capable of carrying more than eight passengers, is not a determinative of a ferry service or a tourism service. It is determined by the purpose of the service and the type of passengers carried on the service, i.e. commuters or tourists.

[91] Mr McCarthy submitted that the Award/Agreement comparisons, indicative rosters and calculation tables, tendered by the applicant, in respect to rates of pay, overtime and penalty rates disclose the following:

[105]

[94] Mr McCarthy rejected the Union's contention that the Agreement does not pass the BOOT. The Union's case is based entirely on a false assumption that the Marine Tourism Award has no relevance or application to this matter. In addition, the Commission's Triage Team had requested further information and appropriate undertakings as a result of its own inquiries and a submission put to it by the Union. The applicant had provided two detailed responses and source documents. It had offered an undertaking in respect to 'Span of Hours' (which the Union rejected). Mr McCarthy relied on Mr Ford's evidence as to the limitations on employment of Junior employees and why Junior rates are included to provide vocational training of young people which is found in the Marine Tourism Award.

[95] In respect to the pre-approval steps, Mr McCarthy rejected the Union's claim that the applicant had, since April 2015, consistently misrepresented the name of the applicant by identifying Manly Fast Ferry Pty Ltd as the employer of the employees, when on the applicant's own view, Noorton Pty Ltd is, and always was, the correct employer. The question of the correct employer is a matter of fact. Noorton Pty Ltd was named as the employer on the first NERR on 29 April 2015. Moreover, the Union itself referred to Manly Fast Ferry in a publication it issued on 6 May 2015. In any event, the old Noorton Workplace Agreement will continue to apply to the employees, without a new agreement in place. This is well understood by the employees and the Union.

[96] Further, Mr Ford was at all material times a Director of Noorton Pty. Ltd and a Director of Manly Fast Ferry Pty. Ltd; the two companies are related entities under the Corporations Act; the operating businesses trade under the brand name of 'Manly Fast Ferry'; Manly Fast Ferry Pty Ltd operates the ferry service operations of the business and Noorton Pty Ltd operates the marine tourism and commercial operations of the business.

[97] Mr McCarthy emphasised that all payslips and group certificates had been issued in the name of Noorton Pty Ltd. There could be no misunderstanding as to the identity of the employer. Mr McCarthy relied on Mr Ford's evidence; see: para [43] as to the changing business strategy as to the reason why the final NERR issued on 6 June 2017 was in the name of Noorton Pty Ltd.

[98] Separately the Union must have been aware that Noorton was the employer when the Union:

advised Noorton of a dispute on 16 June 2017 (matter C2017/3255); and

presented employee payslips in a right of entry dispute under s 483AA (Matter RE2017/786).

[99] Mr McCarthy addressed the Union's submission that the Agreement was not 'genuinely agreed' because Noorton has not complied with the requirements under s 173(1) and (2) in respect to notification time. That section reads:

[118]

[102] In addition it is clear that further communications with the Union continued after the issuance of the NERR with a 'best and final offer' conveyed to the Union on 9 June 2017.

[103] As to the cohort of employees identified as eligible voters, Mr McCarthy relied on the steps taken by Mr Ford; see: para [66]-[68], which used both an independent service provider and downloaded Company data showing:

- the Shift worked by the employee before or on the date of the vote;

- the Shift worked by the employee after the vote;

- the employees start date of employment with Noorton P/L; and

- the last date the employee logged on to the Company's on-line roster system.

[104] Mr McCarthy addressed each of the circumstances of eight unnamed employees identified in cross examination (Employees 2, 6, 11, 12, 16, 20, 33 and 37). No issue was raised which would have disentitled any of these employees from the vote. Mr McCarthy concluded as follows that:

(a) All 49 employees given a vote (the cohort) had started with the business not only before the date of the vote, but had started with the business before the end of the previous financial year (i.e. before 30 June 2017) and so had all started at least 11 days before the date the vote took place on 11 July 2017.

(b) 38 of the 49 employees given a vote (i.e. 77.5%) started with the business more than one year before the vote.

(c) 30 of the 49 employees given a vote (i.e. 61%) started with the business more than 6 months year before the vote.

(d) 17 of the 49 employees given a vote (i.e. 35%) started with the business more than 2 years before the vote.

(e) All 49 employees given a vote (i.e. 100%) worked for the business after the date on which the vote was conducted on 11 July 2017.

[105] This breakdown also demonstrated the Union's claim of a high turnover of labour was wrong. There was no uncertainty that Noorton had always been the legal employer. It followed that all 49 employees were employed at the time of the vote and will be covered by the Agreement; see: National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98; [2015] 232 FCR 246 ('Swinburne') and McDermott v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) [2016] FWCFB 2222 ('McDermott') where a Full Bench said at [32] and [35]:

[126]

[110] Ms Doust submitted that the Commission could not be satisfied that Noorton Pty Ltd is an employer capable of making an enterprise agreement or of making an application for approval of an agreement, pursuant to s 185 of the Act. This was because from 14 September 2015 to 5 June 2017, Mr Ford repeatedly issued NERRs, and correspondence and he had sworn documents before the Commission under the hand of Manly Fast Ferry. Mr Ford also repeatedly represented Manly Fast Ferry as the employer to the employees and the Union. Ms Doust noted that the F16 and F17 filed with an earlier Agreement in December 2016 refers at various points to the employer as Manly Fast Ferry. Moreover, it is still contended that the Manly Fast Ferry Pty Ltd & MUA - Sydney Harbour Ferry - Workplace Agreement 2009 identifies Manly Fast Ferry as an employer of the employees engaged on vessels operating on the Circular Quay/Manly ferry service. Even if the Union was aware that Noorton was party to the Commercial Vessels and Whale Watching Agreement, this does not make it more likely the current employees are, and always were employed by Noorton.

[111] Ms Doust said that despite the Union applying for an Order to Produce in respect to letters of engagement and details of the commencement of each employees offered a vote, no such material was forthcoming. There is nothing to substantiate the existence of any contracts of employment between the applicant and each employee offered a vote.

[112] Mr Ford's explanation about 'evolving events' and 'change of strategy' and then not proceeding with the business restructure is not credible. Nor was Mr Ford's evidence that it was not until May 2017 that he became aware, after legal advice, that the NERR needed to be changed. Given Mr Ford was at all times being advised by Mr McCarthy, it is unbelievable that the employer would proceed to negotiate an enterprise agreement and issue NERRs by an entity, other than the legal employer. Ms Doust put that there is no scope in Part 2-4 of the Act for the making of an enterprise agreement between a party which is not currently the employer in the business concerned. This is clear from the ordinary meaning of the term 'employer' in s 15 of the Act and the meaning of a national system employer under s 14. Given there was no evidence of 'miscommunication' between Mr McCarthy and Mr Ford, the Commission would find his explanation 'inconceivable'.

[113] Ms Doust submitted that the Commission would not regard Mr Ford as a reliable witness, of care and precision, as to the status of employees when:

he mistakenly said in a signed statement there had been four votes of employees (admittedly accepting this mistake in oral evidence);

he failed to mention in his second signed statement that a major change in ownership of the applicant had recently taken place, being the acquisition of Mr Ford's majority shareholding in Noorton by NRMA Marine;

he had difficulty answering questions about the new corporate structure and was unclear as to whether he continued to be a Director of either Manly Fast Ferry or Noorton; and

he continued to 'cavalierly' describe Noorton Pty Ltd t/a Manly Fast Ferry when that name is not a registered entity. He clearly lacks an understanding of the distinction between the two entities and the regulatory environment in which they operate.

[114] Ms Doust claimed that payslips and Survey Certificates were created after the event. They do not demonstrate which entity engaged the employees, according to a contract of employment. Accordingly, the Commission would not be satisfied that Noorton is the employer of every one of the employees in the business, or the applicant was capable of negotiating an enterprise agreement with the employees.

[115] Ms Doust then dealt with each of the matters under ss 186 and 187 of the Act which are required to be satisfied for the Agreement to be approved. She noted that s 181(2) serves an important function of ensuring a period of at least 21 days after employees have been informed of their bargaining rights before a proposed agreement is put to a vote.

[116] Ms Doust said that the effect of section 173 and section 174 read together is to require the taking of reasonable steps by the employer (not some other entity) to give an NERR:

(a) in the prescribed form (s174);

(b) to each employee who would be covered by the agreement (s173(1)(a)), who was employed at the time the employer (and not any other entity) either agreed to bargain or had initiated bargaining; and

(c) as soon as practicable, and not later than 14 days, after that time.

[117] A notice in the proper form given by an entity, other than the employer, would not be a notice given under s173(1). Nor would a notice given before the notification time as defined. Obviously, if an attempted NERR failed to meet the requirements of s 173(1) then the 21 day time period would not commence to run and the request to vote could not be satisfied; see: Uniline Australia Limited [2016] FWCFB 4969 at [109].

[118] Ms Doust put that even accepting the applicant is correct as to the identity of the employer, none of the earlier NERRs (29 April 2015, 14 September 2015, 26 April 2016, 23 February 2017), issued by Manly Fast Ferry were otherwise defective, by not including the phone number of the Fair Work Commission Infoline.

[119] In addition, Ms Doust said the NERR of 6 June 2017 was invalid because it was not issued as soon as practicable and not later than 14 days after the notification time for the Agreement, being the time the employer agrees to bargain or initiates bargaining. Ms Doust contended that nothing was done by Noorton to 'initiate' or 'agree' to bargain in the 14 day period, prior to 6 June 2017. The highest the applicant's evidence went on this issue were the text messages to Mr Chippendale and Ms Spata. Nothing in these messages evinces any intention of Noorton to initiate bargaining or that Mr Ford intended to bargain. The subject is about what the employees should do, not what Noorton wanted to do. Ms Doust observed that Mr Chippendale was not entitled to vote and did not vote and neither he, or Ms Spata were bargaining representatives appointed by other employees. Moreover, no evidence was adduced from Mr Chippendale or Ms Spata and there was no evidence that either of them sought to bargain and Noorton therefore 'agreed to bargain' (with them).

[120] Ms Doust submitted that the only action of approaching anything like bargaining was the 14 June 2017 email which enclosed a proposed agreement to be put to the vote. That communication was too late to satisfy the requirements of s 181(2) of the Act. For the reasons earlier mentioned, bargaining could not have been initiated by Noorton on 29 April 2015.

[121] Ms Doust dealt with the question of whether the employees said to be entitled to vote, were employees who were employed at the time of the request to vote and who will be covered by the Agreement. This goes to whether the Agreement has been 'genuinely agreed' to be a majority of those employees who cast a valid vote to approve the Agreement (s 181(1)). This involves three elements:

(a) whether the correct cohort of employees had been requested to vote;

(b) whether the votes that were cast were votes to approve the agreement; and

(c) if they were, whether such votes constituted a valid majority.

[122] Ms Doust expressed real doubts as to whether the cohort of employees were in fact employed by Manly Fast Ferry, in circumstances where:

(a) all the employees are Casual;

(b) there is a substantial turnover of labour; and

(c) there was the engagement of new Casual employees immediately prior to the vote.

[123] Relying on Swinburne, Ms Doust put that it is not enough that a casual employee might be 'usually employed'; rather it must be established, with certainty, that the person is employed at the time. Further, a 'future likelihood' of someone being covered by an agreement, is insufficient; see: Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union and Others [2012] FWAFB 2206 and Construction, Forestry, Mining and Energy Union v Hamberger [2011] FCA 919; 195 FCR 74. Section 188 of the Act will not be satisfied if persons ineligible to vote, did vote and this may have affected the result; see: University of New South Wales re University of New South Wales (Professional Staff) Enterprise Agreement [2010] FWAA 9588.

[124] By reference to the redacted information of the list of employees and their timesheets. Ms Doust set out a list of employees who voted, and who the Union claimed were either not employed at the time of the vote, or would not be covered by the Agreement. The facts associated with each unidentified employee were drawn from the timesheets provided by the applicant. The table is as follows:

[136]

[125] Ms Doust did not dispute that a casual employee did not necessarily have to be engaged on the day of the vote. However, the principles in Swinburne do not extend to employees who are not present in the workplace for over four months or where there is no expectation an employee will be offered further work upon their return from unpaid leave. Ms Doust put that the Commission could not be confident that employees 12 and 37 above had performed a shift covered by the Agreement. Given that a single invalid vote would change the outcome of the vote, the Commission could not be satisfied the Agreement was made in accordance with s 182 of the Act. In addition, the requirement that the vote be to approve the Agreement, was not what the employees were asked when the question posed was whether they agreed that a new MFF Enterprise Agreement for GPHs and Hosts be made?

[126] Pursuant to s 188(c), Ms Doust dealt with whether there were other reasonable grounds why the Agreement might not be 'genuinely agreed'. Section 188(c) imputes a concern for the authenticity and moral authority of the Agreement; see Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [1999] FCA 847; (1999) 93 FCR 317 ('CFMEU v AIRC'). Consideration of the circumstances relevant to s 188(c) are not limited. Ms Doust submitted the combined effect of all the circumstances surrounding the history of this Agreement, gives rise to the type of concern contemplated by s 188(c). These circumstances included the uncertainty over the applicable Award; the confusing and changing identity of the true employer of the employees and other misleading information, such as advice the Agreement would be approved if a majority of employees voted in favour, rather than a majority of the valid votes cast in the ballot which was the earlier explanation posed by the employer.

[127] Ms Doust then dealt with the Union's BOOT contentions. The Union maintained that the relevant Award is the Ports Award as Noorton is in the ports, harbours and enclosed water vessels industry. The classifications in the Agreement, such as GPH and Host are identified in that Award. Ms Doust relied on clause 4.1 of the Award to make good this proposition. It reads:

[142]

[129] Ms Doust added that a 'ferry' is defined under the Marine Safety Regulation 2016 and Passenger Transport Act 2014 (NSW) as a vessel seating more than eight adult persons. All of the applicant's vessels fall within that definition (except perhaps for Totally Wild). The applicant's vessels are timetabled to provide over 1000 services each week between Manly, Circular Quay, Darling Harbour, North Sydney, Pyrmont and Watsons Bay (700 of these are Manly/Circular Quay passenger services). This would be sufficient to establish that the employer is wholly, or substantially engaged in activities not contemplated by the Marine Tourism Award. In addition, Ms Doust said that the Eco Hopper service is a regular and scheduled service. In any event, the fact a vessel might include sightseeing hop on/hop off services during some hours, is not sufficient to overcome its predominant purpose as a 'ferry'. The Harbour Beaches ferry also operates a total of 28 regular and scheduled services. It is a transport service, and in any event, a small proportion of the applicant's business. Ms Doust put that the applicant's reliance on the State Act when the Federal Act applied, was misconceived and not explained.

[130] Ms Doust observed that the applicant had not provided any evidence of the extent of its charter, whale watching or special event services and, tellingly, did not include this work in its BOOT modelling. This is because it is a very small proportion of the shifts worked by employees. Ms Doust rejected Mr Ford's evidence that it was the Company's position that 32 - 35% of the hours worked are in the tourism sector. The 'Company's position' is not evidence of the factual position, particularly when no evidence was provided to support it. Accordingly, the Commission should determine that the Ports Award is the relevant Award for the purposes of the BOOT and although a submission that the two Awards apply is novel, it does not detract from this proposition.

[131] Ms Doust set out the following matters as disadvantageous for the employees when compared to the Ports Award:

(a) The absence of a requirement for part-time employees to have an agreed regular pattern of work, and for any variation to be agreed in writing (cl 10.4(c) & (d));

(b) The absence of a minimum 2 hour engagement for part-time employees (cl 10.4(e));

(c) The absence of a minimum 3 hour engagement for casual employees (cl 10.3(d));

(d) The inclusion of 'Junior Employees' at clause 11.c of the Agreement. There is no 'Juniors' in the Ports Award;

(e) The absence of a classification covering the role of 'ticket seller';

(f) Clause 12 of the Agreement provides that for permanent employees, the rates in Schedule 1 incorporate all shift penalties, weekend penalties, public holidays (except in relation to the additional payments for weekly employees when they work on a public holiday), annual leave loading and all other allowances payable. Depending on the hours and shifts actually worked by an employee, that provision has the capacity to disadvantage an employee;

(g) The Agreement is less beneficial than the Ports Award in respect of the allowances in 14.7, 14.12, 14.12, 14.14, 14.15, 14.17; 14.21, 14.22, 14.27;

(h) Clause 12.g. is inconsistent with the decision of the Full Bench in Shop, Distributive and Allied Employees Association v Beechworth Bakery Employee Co Pty Ltd t/a Beechworth Bakery [2017] FWCFB 1664 ('Beechworth').

(i) The Ports Award provides that wages will be paid weekly or fortnightly. Clause 13 of the Agreement permits, (by agreement) with a single employee or majority of employees and the Company, for wages to be paid either four weekly or monthly;

(j) Clause 16.a of the Agreement does not provide for a span of hours, but allows for up to 11 ordinary hours per day. Clause 18.2 of the Award provides for a span of hours and prescribes 8 ordinary hours. Span of hours affects entitlements to overtime payments. The absence of a span of itself is disadvantageous before any consideration is given as to the monetary impact: the existence of a span is likely to impose discipline on the employer in respect of rostering and the management of work hours.

[132] Ms Doust noted that the Union had undertaken a BOOT analysis of 20 employees, based on the redacted timesheets and payslips for the period 10 July to 23 July 2017, by reference to the Agreement and the Ports Award in the following circumstances:

Normal hours

Saturday hours

Sunday hours

Training hours

Travel time

Working after 6:00 pm

[133] Ms Doust submitted that this analysis demonstrated that:

(a) For the relevant period, employees 1, 2, 3, 8, 9, 41, 42, 43, 45, 47 and 49 (that is, 55% of the employees analysed) would have been 'worse off' under the Agreement, than they would have been if paid under the Ports Award;

(b) One significant source of the disparity is Sunday work. For that work, the Agreement provides the aggregated weekend rate in Table 1 of Schedule 2 of $35.40 per hour, whilst Sunday work under the Ports Award attracts a payment of $44.98 (with a 100% loading in cl 20.3). Under the Agreement, the Sunday 'uplift' rate ($45.00) is payable only in respect of the Circular Quay - Manly service. Other vessels operating on a Sunday do not attract that 'uplift';

(c) A further major source of disadvantage is transport/travel. The Ports Award provides at cl 14.22 for travelling time to and from the employee's home, to be paid at ordinary rates when the employee is required to commence before 6.00 a.m. or finish after 11.00 p.m. The clause also provides for transport to be provided. No similar provisions are in the Agreement;

(d) Where an employee starts or finishes at a location, other than their usual location, the Ports Award provides, at clause 14.22(b) and (c) for payment whilst travelling between locations (at the overtime rate if not by the worker's own vehicle, and for a minimum of half an hour if travelling in such vehicle) and either the payment of travel expenses, or a mileage allowance. In short, travel costs are defrayed. Clause 26 of the Agreement provides for an employee to receive an additional 15 minutes payment and reimbursement of travel costs up to $10.00. It is difficult to imagine any worker being able to travel between any of the applicant's work locations in less than 15 minutes at a cost which does not exceed $10.00;

(e) Another source of disparity is work beyond 6.00 p.m. Under the Ports Award, rates for an 'afternoon shift' (that is, a shift ending after 6.00 p.m. and before midnight) attract an hourly rate of 115% of the ordinary time rate, or an additional $3.37 per hour. That rate is applied for each hour of the shift. Under Cl 12(d)(iii) and Table 2 of Schedule 2 of the Agreement, hours worked after 6.00 p.m. on 'ferry work' attract an additional $2.00 per hour. The 'undertaking' provided by the applicant in respect of span of hours has no impact on this issue, as it applies in respect of 'day work'.

[134] Ms Doust observed that while the applicant's indicative rosters were based on a speculative assumption of 11 Permanent, 14 Permanent Part-Time and 4 Casual employees when the entire work force is casual, Mr Ford accepted the applicant could not know how many employees would take up the permanent option. Accordingly, the Commission could have no confidence in the probative value of the applicant's calculations.

[135] In respect to there being no Junior classifications in the Ports Award, it was noted that the applicant might engage Juniors as GPHs. In those circumstances the rates are significantly lower than the casual GPH and Host rates in the Ports Award. There would be a real prospect Junior employees might be engaged in a Host/Hostess role at half the rate than would apply for a GPH role.

[143]

[136] Mr McCarthy put that earlier invalid NERRs and associated documents are of no relevance to the present application before the Commission. The only relevant NERR is that issued on 6 June 2017 under the name of Noorton Pty Ltd; the Company who is, and always has been the employer of employees to be covered by the Agreement.

[137] Mr McCarthy submitted that no adverse inference can be drawn by the fact there are no 'letters of appointment' or 'contracts of employment' for the employees; all of whom are engaged as Casuals. There is no legal requirement for written contracts to exist for there to be contracts of employment between Noorton and its Casual employees. Any suggestion of impropriety by Noorton in this respect should be soundly rejected. In any event, there is clear documentary evidence of contracts of employment, being numerous payslips, group certificates and timesheets. Further, the employees are specifically engaged under two current old Workplace Agreements.

[138] Mr McCarthy rejected criticism of Mr Ford and the applicant for confusion over the use of the brand name, Manly Fast Ferry. Mr Ford's evidence on this matter was clear, credible and honest. In any event, the only relevant circumstances relate to the NERR of 6 June 2017, citing the correct name of the employer. There was nothing 'cavalier' about Mr Ford's approach to the use of the name Manly Fast Ferry, given it is the name commonly understood by employees, the public and in the industry generally. For surety, and on advice, Noorton Pty Ltd has now registered the business name of Manly Fast Ferry (23 March 2018). Mr McCarthy insisted Noorton Pty Ltd was both competent to make the new Agreement and make application to the Commission for approval of the Agreement.

[139] Mr McCarthy addressed each of the Union's contentions as follows.

[140] The applicant only relies on the NERR issued under the name of Noorton Pty Ltd on 6 June 2017. It does not seek to rely on any of the earlier NERRs save for the fact they demonstrate that bargaining had been ongoing since 29 April 2015 with Noorton Pty Ltd, commonly known as Manly Fast Ferry.

[141] Mr McCarthy rejected the Union's submission that nothing was done by the applicant in the 14 days prior to the 6 June 2017 to initiate bargaining or agree to bargaining. He relied on Mr Garrett's declaration that 'bargaining was concluded' and the applicant's ongoing communication directly with persons it understood to be bargaining representatives of the employees (and the MUA), Mr Chippendale and Ms Spata; see: Maritime Union of Australia, The v Maersk Crewing Australia Pty Ltd [2016] FWCFB 1894 ('Maersk') at [34] and [35]. There can be no doubt the applicant had 'agreed to bargain' by its conduct and actions prior to the issuance of the NERR on 6 June 2017. There is no evidence to the contrary; see: Maersk at [49]. In any event, further 'toing and froing' occurred, including with advice to the Union of the Company's 'best and final' offer.

[142] As to the correct cohort of employees requested to vote, Mr McCarthy referred to the uncontested evidence as to the periods of service of the employees (77.5% had worked for the Company for over six months) as clearly demonstrating there was no 'substantial turnover of labour' as claimed by the Union, or that there was a sudden influx of new Casual employees before the vote. Rejecting the notion that employees were not regular and systematic Casuals, Mr McCarthy referred to the method of payment set out in clause 10.3(c) of the Ports Award and noted the Union conveniently left out the bolded wording.

[145]

[143] Mr McCarthy drew the following summary conclusions from Table 1 at para [124] above:

(a) 5 of the employees (No. 2., 6., 11., 16. and 38) were absent on a period of leave at the time of the Vote.

(b) All 5 employees on leave were expected to resume work and all 5 employees did resume work for the applicant after their period of leave.

(c) Employee No. 6 - who was on leave - did not vote.

(d) Employee No. 12 is a Ticket Seller who also performs shifts as a Deckhand and therefore was entitled to vote.

(e) Employee No. 20 worked on the day of the vote as a Deckhand and was entitled to vote.

(f) Employee No. 33 worked as a Deckhand on the day of the vote and was entitled to vote.

(g) Employee No. 37 is a Ticket Seller who also performs shifts as a Deckhand and was therefore was entitled to vote.

[144] Mr McCarthy maintained that all 49 employees who cast a vote were employed at the time of the request to vote and will be covered by the Agreement.

[145] In rejecting the Union's submission that there was uncertainty as to whether an employee would still be employed by the employer in the future, Mr McCarthy observed that no such requirement (as to certainty into the future) exists under s 181. In fact s 53 of the Act provides that an enterprise agreement covers an employee 'if the agreement is expressed to cover (however described) the employee'.

[146] Mr McCarthy rejected the 'no other reasonable grounds' (s 188(c)) argument of the Union and the decisions relied on; see: paragraph [126] above as being applicable in this case. The Commission would have no concerns about impugned, improper or misleading conduct of the applicant as alleged by the Union. On the contrary for over two years, the applicant has been acting in good faith with the Union (including in related proceedings before three other members of the Commission) for a new Agreement. There has been no egregious behaviour, by act or omission of the applicant, for the Commission to find that the Agreement was not 'genuinely agreed' by the employees under s 188(c).

[147] In respect to the exclusivity of the Ports Award in this case, and this matter being of fundamental disagreement between the Company and the Union. Mr McCarthy recalled the history of negotiations from April 2015 and the Union's 'in principle' agreement to:

(a) one Agreement covering both industry sectors; and

(b) achieving this in a cost competitive and effective way through a 'blending and averaging' approach to wage rates and conditions.

[148] Mr McCarthy stressed that in the two and a half years since and with over 20 draft Agreements, these principles were reflected in the Agreement's terms; most notably in cls 5 and 6 of the Agreement now before the Commission. Mr McCarthy questioned the Union's current position that all of the work performed by the business is 'ferry' work when it had initially sought to expand the coverage of a single Agreement from only 'ferry services' to cover both 'ferry' and 'marine tourism' operations. The truth is the Union's own position and actions reflected the reality of the business's operations in both industry sectors (as does the two Modern Awards). Mr McCarthy further noted that in two and a half years of bargaining the Union had never sought an order from the Commission as to the correct reference instrument.

[149] Mr McCarthy submitted that reliance on a statutory definition of a 'ferry' as any vessel seating more than eight adult persons, is overly simplistic and does not reflect the wider statutory framework which reflects the reality. He reaffirmed there are only two ferry services (Manly/Circular Quay and Circular Quay/Darling Harbour). The remainder of the services are marine tourism services. In addition, reliance on timetables does not establish a 'ferry' service. A marine tourism business would not be able to operate efficiently unless customers had knowledge of scheduling and timetabling.

[150] Mr McCarthy rejected the submission that State based legislation has no relevance to the determination of Federal industrial Award coverage. This ignores the extensive range of state legislative provisions and licencing regimes directly impacting on the coverage and operation of Federal awards, such as in mining, trades and transport.

[151] As to the BOOT compliance, Mr McCarthy relied on the applicant's earlier submissions and specifically addressed each of the Union's submissions; see: paragraph [131] above, as follows:

The part time provisions arise from the Marine Tourism Award. Part time employees are guaranteed 64 hours in each four week cycle, with a minimum of four hours and maximum of 11 hours per day (The MUA claimed no minimum of two hours a day). In any event, hourly rates under the Agreement are higher than either Modern Award ($26.62 versus $22.48 (Ports Award) and $20.15 (Marine Tourism Award))

[153]

[152] Mr McCarthy said that the applicant's submissions and attached Excel spreadsheets responded to the Union's BOOT analysis of the payslips and timesheets of 20 employees for the period 10 July to 23 July 2017. Firstly, he noted that the analysis relied on by the Union were if the employees were all employed exclusively under the Ports Award and secondly, a number of corrections needed to be made to the Union's calculations because of double counting and misallocation of hours. Thirdly, the Union had not compared the travel provisions correctly as between the travel provisions under the Ports Award compared to the Agreement. They are not 'like with like'. This provision makes up for 90% of the Union's negative BOOT calculation. Mr McCarthy said the Agreement's travel time and allowance clauses provide an additional allowance when an employer starts work and finishes work at different locations and must travel back to the place of origin. This is a different concept to work commencing before 6:00 am. In addition the Agreement has separate Travel Outside of Ordinary Hours/Call Back provisions (clause 26(b)).

[153] Mr McCarthy submitted that employees will continue to start work from 5:00 because some employees prefer it. While recognising that under the Union's modelling, some employees might be 'worse off 'by being exclusively employed under the Ports Award, in every example, the employees are 'better off' under the Agreement, where there is a combination of the two Awards. It is also important to note that the time snapshot of two weeks will change, as employees rotate shifts resulting in an 'evening out' of any adverse impact. Mr McCarthy submitted that the Commission would prefer the Company's indicative rosters tendered earlier in the proceedings, because they indicate the financial benefits the employees will receive in the future. For example this analysis:

(a) Accurately reflects how the business will run in the future taking account of the new provisions of the Agreement;

(b) Calculates the BOOT over a reasonable rostering period, not just one past 2 week period of work;

(c) Calculates the BOOT in relation to all future classes of employees, i.e. Casuals, Full Time employees and Part Time employees, and not just the past practice of all employees being Casuals; and

(d) Even demonstrates a scenario where employees will be 'better off', even in the circumstance that all work performed by the business is 'ferry' work, except whale watching.

[1] Mr McCarthy put an alternative submissions should the Commission not be satisfied that the applicant has met all the pre-approval compliance steps. He put that these proceedings should be adjourned, until after the Federal Parliament passed the Fair Work Amendment (Abolition of 4 yearly Reviews of Modern Awards and Other Measures) Bill 2017. This proposed legislation, inter alia, would give the Commission the discretionary power to waive any minor procedural defects when approving an enterprise agreement, provided that the integrity of the agreement and its approval by employees, is unaffected.

[227]

[8] The 6 June 2017 NERR stated that Noorton Pty Ltd was the employer and had the authority to issue the last NERR. The Union went to considerable effort to trace the two and a half year history of the negotiations for the Agreement with Ms Doust closely cross-examining Mr Ford in order to establish that the Union and the employees had been misled as to the employer's true identity. Putting aside the Union brought no evidence from any employees, in my view, the only relevant identification of the employer for the purposes of negotiating the Agreement and making the application for approving the Agreement, is the last NERR issued on 6 June 2017 (and the F17).

[9] It is common, during protracted agreement negotiations, for more than one, (and sometimes multiple), NERRs to be issued. The Act makes plain, by s 181(2), that the only relevant NERR is the last notice made under s 173(1). Having been issued 21 days before the request for a ballot can be made, it follows that earlier requests for a ballot may have been made, or an unsuccessful ballot may have taken place, but they are not relevant. Such a history does not impugn the last NERR (assuming all other preapproval steps are complied with). However, before a ballot, the only non-compliance issue, resulting in a rejection of the application on this issue, is if the last NERR was issued less than 21 days before the ballot had been requested. That is not the case here.

[10] The fact there may be no letter of appointment or contracts of employment with the employees is not a statutory test as to issuance of the last NERR. It will be a question of fact as to whether the employees were employed by the named employer as stated in the NERR. It is Noorton Pty Ltd - of that there can be no legal doubt. Of course, whether some of the employees of Noorton Pty Ltd were not eligible to cast a vote in the ballot, or will not be covered by the Agreement, are completely different propositions which I shall come to shortly.

[11] In any event, having been involved in this matter for some time, I have no doubt at all that the use of the brand name Manly Fast Ferry is commonly understood and accepted by the Union and the employees. It is a name well known to customers and the industry as the entity supplying ferry and tourism services in Sydney Harbour. Moreover, the employees would have been in no doubt as to their legal employer being Noorton Pty Ltd. Their payslips and Group Certificates over a number of years make this abundantly clear. In addition, the following facts are relevant to dispel any claim of confusion or uncertainty as to the legal employer of the employees:

(a) Noorton Pty Ltd is referred to in one of the old Workplace Agreements which have been in place for many years, and continue to remain in force. That agreement covers whale watching activities.

(b) The use of the name 'Manly Fast Ferry' in the title of the Agreement is irrelevant to the legal name of the employer of the employees to be covered by the Agreement. There is certainly no requirement for the name of the employer to feature in the title of the Agreement (as thousands of approved agreements obviously demonstrate);

(c) The evidence that Mr Ford was confused as to his use of the name, Manly Fast Ferry or that his evidence was said by the Union to lack credibility, is not the point; although I accept Ms Doust's submission that it may be relevant to section 188(c) of the Act (the 'no other reasonable grounds' issue);

(d) At all times, the Union and the employees knew Mr Ford was the person who had authority to negotiate on behalf of Noorton as a bargaining representative. In any event, Mr Ford was an officer of Noorton and at the same time an officer of Manly Fast Ferry, a wholly owned subsidiary of Noorton Pty Ltd. There is no evidence the Union, or any employee had ever challenged Mr Ford's standing or authority to negotiate the terms of the Agreement.

[12] Accordingly, I am satisfied that the NERR issued by Noorton Pty Ltd on 6 June 2017:

(a) contains the prescribed content as set out in the Regulations;

(b) does not contain any other content; and

(c) is in the form prescribed by the Regulations.

[13] There being no other matter which might impugn the validity of the 6 June 2017 NERR, I am satisfied that ss 172, 173, 181 and 188 have been complied with. It follows that it is unnecessary to consider Mr McCarthy's alternative submission that this matter should be adjourned pending passage of the Fair Work Amendment (Abolition of 4 yearly Reviews of Modern Awards and Other Measures) Bill 2017; see: para [154]. However, I would note that this is a rather bizarre submissions given that:

(a) there appears to be no urgency from any quarter to have the Bill brought before the Senate; and

(b) it would be unlikely that any amendment to the Act would have retrospective operation.

[320]

[25] A more intensive consideration arises under s 180(5) of the Act as to whether the Agreement was 'genuinely agreed' by the employees, as a result of the judgement of the Full Court of the Federal Court in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 ('One Key'). This judgement was published on 25 May 2018, four weeks after the Commission had reserved its decision in this matter. The Full Court concluded that:

In order to reach the requisite state of satisfaction that s 180(5) had been complied with, the Commission was required to consider the content of the explanation and the terms in which it was conveyed, having regard to all the circumstances and needs of the employees and the nature of the changes made by the Agreement.

The absence of that information meant that the Commission was not in a position to form the requisite state of satisfaction.

Without knowing the content of the explanation, it was not open to the Commission to be satisfied that all reasonable steps had been taken to ensure that the terms and their effect had been explained to the employees who voted on the Agreement or that they had genuinely agreed to the Agreement.

[26] I did not invite further submissions from the parties arising from 'One Key', because I was satisfied that the applicant had taken reasonable steps to ensure the terms of the Agreement, and their effect, had been explained to the employees consistent with One Key. That finding is manifest by the long history of negotiations, the active involvement of the Union itself, in explaining the effect of the Agreement's terms, and more specifically the detailed 17 page Summary and Explanation of Changes (Annexure 6 to the F17) sent to all relevant employees. I note also a paid Employee Information Session for all employees on 2 July 2017. In my view, these were all reasonable steps taken by the applicant, which satisfy s 180(5) of the Act and are consonant the One Key judgement.

[27] As will be evident from Ms Doust's submissions, the Union maintains that there is doubt about these two preconditions, given the entire workforce are Casual employees; there is a substantial turnover of labour; and more Casual employees were employed before the vote. Reliance was had on the generally well established view that each casual engagement is a separate contract of employment; see: Shortland v Smiths Snackfoods [2010] FWAFB 5709 at [10]. This is not the case here. It is clear the Casual employees were engaged by the applicant on an ongoing basis with regular and systematic employment. The evidence is that 77.5% employees who voted, had worked for the business for at least six months. All 49 employees who voted, had been working for Noorton in the previous financial year; (see: Group Certificates).

[28] It is obvious the employer considers the employees are regular and systematic Casual employees. The employees are all engaged according to rosters, and employees make known to the employer (and may seek approval before) when making a request to have time off without pay. There is evidence the employees, after any period of extended time off, are re-engaged upon their return.

[29] In my view, Swinburne does not assist the Union's arguments. The evidence establishes that employees are not just 'usually employed' - they are employees who comfortably fit within the expression 'employed at the time'.

[30] Further, I reject the Union's claim that there has been a substantial turnover of labour and that new Casual employees were engaged immediately before the vote. The evidence does not support either claim. I hazard a guess that if a casual Union member was dismissed, the Union would strongly assert they are covered by the unfair dismissal provisions under the Act and are regular and systematic employees. Mr Ford's position is that is exactly how he treats the workforce.

[31] To support its submissions, the Union asserted that nine of the 49 employees who voted in the ballot, were ineligible to do so. It undertook an examination of the rosters and work performed by each employee to substantiate its assertion. I accept that of the nine employees:

(a) 5 of the employees were absent on a period of leave at the time of the vote. They were employees No. 2, 6, 11, 16 and 38.

(b) All 5 employees on leave were expected to resume work and all 5 employees did resume work for the Company after their period of leave.

(c) Employee No. 6 - who was on leave - did not vote.

(d) Employee No. 12 - is a Ticket Seller who also performs shifts as a Deckhand and was therefore entitled to vote.

(e) Employee No. 20 worked on the day of the Vote as a Deckhand and was entitled to vote.

(f) Employee No. 33 worked as a Deckhand on the day of the Vote and was entitled to vote.

(g) Employee No. 37 is a Ticket Seller who also performs shifts as a Deckhand and was therefore entitled to vote.

[32] In addition, given the factual employment profile of the nine employees said to be ineligible to vote, I accept that these employees were employed at the time of the vote, (irrespective of whether they were rostered off on the days of the vote), and meet the second precondition of being employees who are to be covered by the Agreement.

[33] Further, I do not accept the Union's claim that the question posed by the ballot was not specific to the Agreement, but meant a non-specific agreement and was therefore inconsistent with s 182. By the use of the article 'a', as distinct to 'the', is a difference without a distinction. The Agreement the GPHs and Hosts were asked to approve was the one that had been distributed to them as the 'last and final offer'. There was no other Agreement relevant in any practical or statutory sense. Moreover, there could have been no confusion as to what the employees were voting on. No evidence was adduced from any employee that they were confused, or did not understand what Agreement they were being asked to approve.

[324]

[36] There is no doubt that an employer's enterprise can be covered by one or more Modern Awards. For example, a factory in which the employer has manufacturing, transport and clerical functions and where employees do not move outside their respective award coverage, is covered by the respective Modern Awards. Less common, but not rare, are enterprises which, for seasonal or operational reasons, employees may move between the coverage of two or more Modern Awards; for example a farm on which produce is grown and harvested and then stored and distributed. Employees are involved in the horticultural industry and the storage/warehousing industries. In the maritime industry, there have been disputes concerning whether employees are engaged under the Seagoing Industry Award or the Ports, Harbour and Enclosed Water Award. Closer to home, it is common ground that the majority of work to be covered by this Agreement (although the exact percentage is disagreed) would fall within 'ferry' work and be otherwise covered by the Ports Award. The Union insists that this means the Ports Award is the only relevant instrument for the purposes of the BOOT. Where there are disputes about which Modern Award reference instrument applies for the purposes of the BOOT, it is invariably the case that the rates and conditions under a proposed agreement may not meet one reference instrument, but will meet another. But that is not the situation in this case. As I understand the evidence, the employees will be 'better off' whether the test is against the Marine Tourism Award or the Ports Award, (save for whale watching, which no party claims is not tourism work).

[37] In other words, the Union's claim as to the Ports Award being the only Award to be applied for the purposes of the BOOT, is an arid argument. It makes no difference as to whether the Agreement passes the BOOT. In any event, there is no statutory prohibition on the Commission finding that two Modern Awards are the relevant reference instruments for the purposes of the BOOT. I am satisfied that this is the position in respect to operations of Noorton's on-board vessel operations. I shall return to the Union's BOOT submissions shortly.

[373]

[43] While on one view, the Agreement here is strictly not a loaded rates agreement, because the intention is for an agreement which 'blends and averages' the two Awards, for abundant caution, I shall determine whether to approve this Agreement in respect to the BOOT, by reference to these Principles.

[44] In my view, the following matters are pertinent background to this process.

[45] The applicant has gone to extraordinary lengths through an analysis of the rosters, payslips and assumptions advanced by both parties to justify its BOOT modelling and remodelling, including providing the modelling to other members of the Commission, by producing precisely what section 193(1) requires - that each award covered employee and each prospective award covered employee would be 'better off' if the Agreement applied. In my experience, few employers, for obvious practical reasons, undertake the BOOT for prospective employees; see: Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2015] FCAFC 16. In this case, Noorton has provided calculations on current rosters over a two week period and then produced indicative modelling for Casual, Part-Time and Full-Time employees. It has undertaken the exercise with the expectation that some employees will opt to convert to Permanent Part-Time or Full-Time employment after six months. Obviously, it is pure speculation as to the number of employees who may elect do so. I am confounded by the Union's criticism of this approach, given it is more likely the applicant would be criticised for not undertaking the BOOT exercise in respect to prospectively covered employees.

[46] Secondly, the applicant has responded to, and addressed concerns identified by the Enterprise Agreement Triage Team and DP Gostencnik by proposing undertakings, which I am prepared to accept. I also intend to invite the applicant to provide undertakings in respect to:

(a) Reimbursement of any work related expenses; see: para [31(4)] above;

(b) Payment of wages to be only weekly or fortnightly; see: para [31(k)] above;

(c) Should Junior employees be rostered to work on a vessel as a GPH, their rate of pay should ensure that they are 'better off overall' when compared to the Awards.

[47] Thirdly, there are issues raised by the Union in respect to corresponding provisions of the Ports Award, said to be disadvantageous in comparison, when in fact they are better than the Ports Award, e.g. a minimum of four hours Part-Time engagement, when the Ports Award provides for two hours. Part-time provisions provide for higher rates than either Award. Four hour minimum engagement of casuals (three hours in the Ports Award)

Noorton Pty Ltd t/ a Manly Fast Ferry [2018] FWC 4638 (7 August 2018)

At a glance

Court

Decision date

Source

Judgment (383 paragraphs)

Noorton Pty Ltd t/ a Manly Fast Ferry [2018] FWC 4638 (7 August 2018)

Legislation Cited (5)

Cases Cited (1)