Adrian McKenzie, Anaru Tahau, Cobe Rose, David Fox, Sadler Jack, Hannah Devine, Dale Mitchell, Danielle Keast, Matthew Swan, Tyler Quinn v Cruise Whitsundays Pty Ltd T/A Cruise Whitsundays [2024] FWC 1673

1 Fair Work Act 2009 s.739—Dispute resolution Adrian McKenzie, Anaru Tahau, Cobe Rose, David Fox, Sadler Jack, Hannah Devine, Dale Mitchell, Danielle Keast, Matthew Swan, Tyler Quinn v Cruise Whitsundays Pty Ltd T/A Cruise Whitsundays (C2023/5569) DEPUTY PRESIDENT LAKE BRISBANE, 20 AUGUST 2024 Alleged dispute about any matters arising under the enterprise agreement – casual rate – construction – dispute resolved. [1] On 18 September 2023, the Maritime Union of Australia (the MUA) made an application to the Fair Work Commission (the Commission) on behalf of Adrian McKenzie, Anaru Tahau, Cobe Rose, David Fox, Sadler Jack, Hannah Devine, Dale Mitchell, Danielle Keast, Matthew Swan and Tyler Quinn (the Applicants) seeking to resolve a dispute with Cruise Whitsundays Pty Ltd T/A Cruise Whitsundays (the Respondent) under s.739 of the Fair Work Act 2009 (the Act). [2] The parties were unable to resolve dispute and Clause 18.3 of the Cruise Whitsundays Marine Tourism Enterprise Agreement 2018 (the Agreement) empowers the Commission to arbitrate the dispute if it remains unresolved at the workplace level: “18.3 If the [matter] is still not settled, either party may elect to refer the matter to the Fair Work Commission. In this event to resolve the dispute the Fair Work Commission will have the powers available to it under the Fair Work Act 2009.” [3] The matter remained unresolved after conciliation, and the parties requested for the matter to be arbitrated. I issued Directions and a hearing was listed on 19 March 2024 to determine the question for arbitration. Mr Samuel O’Sullivan appeared for Applicants as part of the Maritime Union of Australia (MUA). The Respondent was granted leave for permission to be represented by Mr Tom Earls from Fair Work Lawyers. Question for arbitration [4] The parties have agreed to the following question for arbitration: On a proper construction of the Cruise Whitsundays Marine Enterprise Agreement 2018, what are the rates of pay applicable to casual employees when working ordinary hours? [2024] FWC 1673 DECISION -- 1 of 5 -- [2024] FWC 1673 2 Background [5] The Applicants are casual employees who were covered by the Agreement at the time the application was made. The dispute arises about the correct rate of pay of casual staff. [6] Clause 9 of the Agreement states: “9.1 Schedule 1 contains the daily rates of pay for all employees covered by the classifications contained in Clause 8 Classifications. The rate of pay for each classification is inclusive of all allowances, penalties and additional entitlements, including standard overtime (other than working on Public Holidays) and annual leave loading and shall be the total sum including payment for all duties required and performed of whatsoever nature and whenever required during the employee’s period of service. 9.1.1 The daily rate of pay shall be the rate specified for each classification as detailed in Schedule 1. The Casual rate of pay shall be the permanent rate plus a twenty five per cent (25%) loading (Without the Weekend and Annual leave loading). Casual Daily Rates of pay are set out in Schedule 1…” [7] Schedule 1 provides tables outlining rates of pay for different classifications. For each classification, a daily rate of pay and an overtime hourly rate of pay are provided for permanent staff. The daily rate of pay is reflected as a loaded rate. For casual staff, only an hourly rate of pay is provided. [8] The MUA argue that the appropriate rates of pay for casual staff are the permanent rates of pay outlined in Schedule 1 of the Agreement, plus 25% casual loading, minus the amounts attributed to weekend and annual leave loading, as specified in Clause 9.1.1 of the Agreement. -- 2 of 5 -- [2024] FWC 1673 3 [9] The Respondent argues that the appropriate rates of pay for casual staff are those set out in the tables provided in Schedule 1 of the Agreement. The Respondent states that these rates represent the negotiated and agreed amounts payable, and “broadly reflect the permanent daily rate of pay”, with the annual leave loading and weekend loading components of the permanent rate removed and a 25% casual loading added. Consideration [10] There is no contention between the parties regarding the principles surrounding interpretation of the Agreement under Berri.1 The principles have been confirmed in James Cook University v Ridd (2020) 382 ALR 8 at [65]. In summary, an enterprise agreement is to be read as a whole and in context using the ordinary meaning of the words used, the clause is to be read using a purposive approach rather than a narrow approach considering the industrial context and purpose and context is not limited to the word of the instrument if there is another document associated with the instrument.2 [11] Ambiguity exists when a provision in an enterprise agreement is capable of more than one meaning. The ambiguity may be apparent on the face of the document or may become apparent only when extrinsic evidence is adduced. A provision may be ambiguous even though it is capable of interpretation.3 [12] In Australian and International Pilots Association v Qantas Airways Ltd [2017] FCA 346, Rares J makes the following observations: [37] In Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45 at 52 [10] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ drew further on what Mason J had said in Codelfa Construction Pty Limited v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352. They observed that it was appropriate to have regard to more than internal linguistic considerations in an agreement that the Court had to construe, and to consider the circumstances with reference to which the words in question were used and, from those circumstances, to discern the objective which the parties had in view. [38] In my opinion, the agreement reflects a detailed and complex attempt by the parties to it, and the persons bound by it, to balance a variety of interests and concerns. The cases to which I have referred, both those involving industrial agreements and other forms of contract, demonstrate that all such documents should be construed objectively, while having regard to the context in which they were made and the mutually known facts. In L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235 at 251, Lord Reid said (see also Zhu v Treasurer of New South Wales (2004) 218 CLR 530 at 559 [82] per Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ): The fact that a particular construction leads to a very unreasonable result must be a relevant consideration. The more unreasonable the result the more unlikely it is that the parties could have intended it, and if they do intend it, the more necessary it is that they shall make that intention abundantly clear (emphasis added). -- 3 of 5 -- [2024] FWC 1673 4 [13] The following can be identified under the Agreement: • The Daily Rate for Permanent Staff is a loaded rate which is equivalent to 80 hours worked for seven days a fortnight equivalent to 11 hours and 26 minutes per fortnight. • Schedule 1 states that the Daily Rate for permanent staff is inclusive of all allowances, penalties and additional entitlements including standard overtime and annual leave loading. • Casual rate of pay shall be the permanent rate minus the weekend and annual leave loading. • Callout allowance does not count as overtime. [14] The Allowances are not clearly identified in the Agreement. The Marine Tourism and Charter Vessels Award 2010 is incorporated into the Agreement. However, the issue is that there is no definitive evidence demonstrating the value of the allowances when calculating the loaded daily rate, or the casual rate. [15] Deputy President Colman approved the original Agreement with an undertaking that casual employees would be entitled to overtime rates if an employee works more than 12 hours a day, and that they would be entitled to a call out allowance of $105 for each additional day they were required to work if the casual worker worked beyond 7 days.4 This addresses the concerns of whether the Agreement is better off overall, and that the casual rate was considered at the time of approval. Furthermore, the Agreement was subject to variation by Commissioner Lee, where the issue of casual rates was not addressed.5 These issues were not flagged by the MUA at the time of approval, nor when a variation was sought on this Agreement. [16] The dispute was raised on 18 September 2023, which was a year after the nominal expiry date on 14 March 2022. I accept that a potential construction of the MUA’s argument could be made, as there is ambiguity in the wording of the Agreement. [17] However, it is unreasonable to construct the rates of pay where the allowances were not made clear, nor raised as an issue for the life of the Agreement, considering that the Agreement placed the employees better off than the Award. Nor am I satisfied on the evidence before me that the parties had a more complex view of the casual rates or were a point of contention when interpreting the casual rate under clause 9.1. At face value, it appeared that Cruise Whitsundays apportioned some values in the allowances in Excel to do some tinkering of numbers when calculating its daily rates and causal rates. Although, it is not transparently clear by Cruise Whitsundays what the allowances amounted to, this was agreed to by the MUA and the employees who voted up the Agreement. [18] It would be unreasonable to hold Cruise Whitsundays to hold themselves to a construction of the enterprise agreement in which they were not aware of, or intended to be held to, when there was a clear rate for casuals outlined in Schedule 1. -- 4 of 5 -- [2024] FWC 1673 5 Determination [19] Therefore, I have determined the following: On a proper construction of the Cruise Whitsundays Marine Enterprise Agreement 2018, what are the rates of pay applicable to casual employees when working ordinary hours? [20] Schedule 1 is the commonly agreed rate by the parties during bargaining, the Agreement approval process and the life of the Agreement. As the calculations of the loaded rate and what allowances are covered under the loaded rate are unclear, it is not possible to clearly distinguish the intention of how the loaded rates were calculated. DEPUTY PRESIDENT Appearances: S. O’Sullivan appearing on behalf of the Applicants from the Maritime Union of Australia. T. Earls appearing on behalf of the Respondent from Fair Work Lawyers Hearing details: 19 March 2024 Hearing via Microsoft Teams. Printed by authority of the Commonwealth Government Printer <PR776426> 1 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005. 2 James Cook University v Ridd (2020) 382 ALR 8 at [65]. 3 Cannon Hill Services Pty Ltd v Australasian Meat Industry Employees Union [2016] FWC 7256 at [8]. 4 Application by Cruise Whitsundays [2019] FWCA 1492. 5 Application by Cruise Whitsundays Pty Ltd T/A Cruise Whitsundays Pty. Ltd [2020] FWCA 4571. -- 5 of 5 --