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1.3 A variation to this award does not affect any right, privilege, obligation or liability that a person acquired, accrued or incurred under the award as it existed prior to that variation.

2. Definitions

[Varied by PR733884]

In this award, unless the contrary intention appears:

Act means the Fair Work Act 2009 (Cth).

[Definition of casual employee inserted by PR733884 from 27Sep21]

casual employee has the meaning given by section 15A of the Act.

day charter means a charter with no nights, with a duration of more than 4 hours.

defined benefit member has the meaning given by the Superannuation Guarantee (Administration) Act 1992 (Cth).

employee means national system employee within the meaning of the Act.

employer means national system employer within the meaning of the Act.

engineer means a marine engineer.

exempt public sector superannuation scheme has the meaning given by the Superannuation Industry (Supervision) Act 1993 (Cth).

half day charter means a charter with no nights, with a duration of up to 4 hours.

marine tourism and charter vessel industry has the meaning given in clause 4.2.

master means an appropriately qualified person appointed in command of a vessel.

MED means Marine Engineer Driver.

MySuper product has the meaning given by the Superannuation Industry (Supervision) Act 1993 (Cth).

NES means the National Employment Standards as contained in sections 59 to 131 of the Act.

on-hire means the on-hire of an employee by their employer to a client, where such employee works under the general guidance and instruction of the client or a representative of the client.

Overnight Charter Employee means an employee who is engaged within the classifications in clause 15.1 and who is employed by a business that provides overnight accommodation for staff and paying guests.

Non-overnight Charter Employee means an employee who is engaged within the classifications in clause 15.2 and who is employed by a business that does not provide overnight accommodation for staff and paying guests.

standard rate means the minimum daily rate for a Coxswain (Overnight Charter Employee) in clause 15.1.

3. The National Employment Standards and this award

3.1 The National Employment Standards (NES) and this award contain the minimum conditions of employment for employees covered by this award.

3.2 Where this award refers to a condition of employment provided for in the NES, the NES definition applies.

3.3 The employer must ensure that copies of this award and the NES are available to all employees to whom they apply, either on a notice board which is conveniently located at or near the workplace or through accessible electronic means.

4. Coverage

4.1 This industry award covers employers throughout Australia engaged in the marine tourism and charter vessels industry and their employees in the classifications listed in clause 12—Classifications to the exclusion of any other modern award.

4.2 The marine tourism and charter vessel industry means the operation of vessels engaged on a day charter or for an overnight charter wholly or principally as a tourist, sightseeing, sailing or cruise vessel and/or as a place of or for entertainment, functions, restaurant/food and beverage purposes, engaged in the provision of water orientated tourism, leisure and/or recreational activities but does not include the operation of ferries engaged in regular scheduled passenger and/or commuter transport.

4.3 This award covers any employer which supplies labour on an on-hire basis in the marine tourism and charter vessel industry in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. Clause 4.3 operates subject to the exclusions from coverage in this award.

4.4 This award covers employers which provide group training services for trainees engaged in the marine tourism and charter vessel industry and/or parts of that industry and those trainees engaged by a group training service hosted by a company to perform work at a location where the activities described in clauses 4.1 and 4.2 are being performed. Clause 4.4 operates subject to the exclusions from coverage in this award.

4.5 This award does not cover:

(a) employees excluded from award coverage by the Act;

(b) employees who are covered by a modern enterprise award or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees; or

(c) employees who are covered by a State reference public sector modern award or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.

4.6 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.

5. Individual flexibility arrangements

5.1 Despite anything else in this award, an employer and an individual employee may agree to vary the application of the terms of this award relating to any of the following in order to meet the genuine needs of both the employee and the employer:

(a) arrangements for when work is performed; or

(b) overtime rates; or

(c) penalty rates; or

(d) allowances; or

(e) annual leave loading.

5.2 An agreement must be one that is genuinely made by the employer and the individual employee without coercion or duress.

5.3 An agreement may only be made after the individual employee has commenced employment with the employer.

5.4 An employer who wishes to initiate the making of an agreement must:

(a) give the employee a written proposal; and

(b) if the employer is aware that the employee has, or reasonably should be aware that the employee may have, limited understanding of written English, take reasonable steps (including providing a translation in an appropriate language) to ensure that the employee understands the proposal.

5.5 An agreement must result in the employee being better off overall at the time the agreement is made than if the agreement had not been made.

5.6 An agreement must do all of the following:

(a) state the names of the employer and the employee; and

(b) identify the award term, or award terms, the application of which is to be varied; and

(c) set out how the application of the award term, or each award term, is varied; and

(d) set out how the agreement results in the employee being better off overall at the time the agreement is made than if the agreement had not been made; and

(e) state the date the agreement is to start.

5.7 An agreement must be:

(a) in writing; and

(b) signed by the employer and the employee and, if the employee is under 18 years of age, by the employee’s parent or guardian.

5.8 Except as provided in clause 5.7(b), an agreement must not require the approval or consent of a person other than the employer and the employee.

5.9 The employer must keep the agreement as a time and wages record and give a copy to the employee.

5.10 The employer and the employee must genuinely agree, without duress or coercion to any variation of an award provided for by an agreement.

5.11 An agreement may be terminated:

(a) at any time, by written agreement between the employer and the employee; or

(b) by the employer or employee giving 13 weeks’ written notice to the other party (reduced to 4 weeks if the agreement was entered into before the first full pay period starting on or after 4 December 2013).

NOTE: If an employer and employee agree to an arrangement that purports to be an individual flexibility arrangement under this award term and the arrangement does not meet a requirement set out in section 144 then the employee or the employer may terminate the arrangement by giving written notice of not more than 28 days (see section 145 of the Act).

5.12 An agreement terminated as mentioned in clause 5.11(b) ceases to have effect at the end of the period of notice required under that clause.

5.13 The right to make an agreement under clause 5 is additional to, and does not affect, any other term of this award that provides for an agreement between an employer and an individual employee.

6. Requests for flexible working arrangements

[6 substituted by PR763298 ppc 01Aug23]

Requests for flexible working arrangements are provided for in the NES.

NOTE: Disputes about requests for flexible working arrangements may be dealt with under clause 28—Dispute resolution and/or under section 65B of the Act.

7. Facilitative provisions

7.1 A facilitative provision provides that the standard approach in an award provision may be departed from by agreement between an employer and an individual employee, or the majority of employees in the enterprise or part of the enterprise concerned.

7.2 Facilitative provisions in this award are contained in the following clauses:

(a) clause 10—part-time employees;

(b) clause 13.2—ordinary hours of work;

(c) clause 14.3—minimum break between rostered duty times;

(d) clause 16—payment of wages; and

(e) clause 20.2—annual leave entitlement.

Part 2—Types of Employment and Classifications

8. Types of employment

8.1 Employees under this award will be employed in one of the following categories:

(a) full-time;

(b) part-time; or

(c) casual.

8.2 Notice of employment type

(a) Upon making an offer of employment to a potential employee, the employer must provide a written notice to the person to whom the offer of employment is addressed stating:

(i) whether the person is to be engaged as an Overnight Charter Employee or a Non-overnight Charter Employee;

(ii) whether the person is to be engaged on a full-time, part-time or casual basis; and

(iii) the classification level and rate of pay the employee will receive.

(b) The engagement of an employee as described in the written notice provided pursuant to clause 8.2(a) can only be varied by mutual agreement between the employer and employee, documented in writing.

9. Full-time employees

Any employee not specifically engaged as being a part-time or casual employee is, for all purposes of this award a full-time employee, unless otherwise specified in this award.

10. Part-time employees

10.1 An Overnight Charter Employee or Non-overnight Charter Employee may be engaged to work on a part-time basis.

10.2 A part-time employee:

(a) is engaged to work an average of less than 38 ordinary hours per week; and

(b) has a regular pattern of hours; and

(c) receives, on a pro rata basis, equivalent pay and conditions to those of full-time employees who do the same kind of work.

10.3 A part-time employee must be engaged for a minimum of 2 consecutive hours a day. In order to meet their personal circumstances, a part-time employee may request, and the employer may agree to, an engagement for less than the minimum of 2 hours.

11. Casual employees

[Varied by PR723999, PR733884]

[11.1 deleted by PR733884 from 27Sep21]

[11.2 renumbered as 11.1 and varied by PR733884 from 27Sep21]

11.1 For the purposes of providing potential casual employees with the written notice as stipulated in clause 8.2, the employer must also specify the likely trips the employee will be required to work.

[11.3 renumbered as 11.2 by PR733884 from 27Sep21]

11.2 A casual Overnight Charter Employee:

(a) is engaged to work a specified trip or trips, at the direction of the employer;

[11.2(b) varied by PR723999 ppc 20Nov20]

(b) must be engaged for a minimum of one half-day trip;

[11.2(c) varied by PR723999 ppc 20Nov20]

(c) for working ordinary hours must be paid the minimum daily rate calculated in accordance with clause 15.1 for the classification in which they are employed plus a loading of 25%; and

[11.2(d) inserted by PR723999 ppc 20Nov20]

(d) must be paid the overtime rates prescribed by clause 19.2.

[11.4 renumbered as 11.3 by PR733884 from 27Sep21]

11.3 A casual Non-overnight Charter Employee:

(a) is engaged to work a variety of hours, at the direction of the employer;

(b) must be engaged for a minimum of 2 hours per engagement and a maximum of 12 hours per shift;

[11.3(c) varied by PR723999 ppc 20Nov20]

(c) cannot be engaged for more than 38 hours per week;

[11.3(d) varied by PR723999 ppc 20Nov20]

(d) for each ordinary hour worked must be paid the minimum hourly rate in accordance with clause 15.2 for the classification in which they are employed plus a loading of 25%; and

[11.3(e) inserted by PR723999 ppc 20Nov20]

(e) must be paid the overtime rates prescribed by clause 19.1.

11.4 Offers and requests for casual conversion

[11.5 renumbered as 11.4 and renamed and substituted by PR733884 from 27Sep21]

Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES.

NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 28—Dispute resolution.

12. Classifications

12.1 Crew Level 1

(a) This wage level is for the first 3 months of employment (probationary period). During this timeframe the 5 day Introduction Deckhand Course may be completed by the new employee.

(b) Duties include but are not limited to:

· the service, hospitality and entertainment of passengers;

· the preparation of the vessel for departure/s;

· the setting, trimming, and striking of sails as required;

· the stocking and dispensing of liquor under direction of licensee;

· the preparation of meals;

· the ordering of stores; and

· the performance of duties as required by the immediate supervisor, Coxswain or Master.

(c) Qualification training is not mandatory.

12.2 Crew Level 2

(a) After completing the first 3 months of employment (probationary period) and upon the completion of the Introduction Deckhand Course or relevant experience/qualifications as determined by the employer, the employees’ wage level will rise to that of the Crew Level 2 wage.

(b) Duties include all those of a Crew Level 1 employee, usually to a higher level of competence than a Crew Level 1 employee.

12.3 Crew Level 3

(a) A qualified crew member who obtains the qualification of Coxswain Ticket enabling the employee to drive a tender within 2 nautical miles of the mothership.

(b) Duties include all those of Crew Levels 1 and 2, usually to a higher level of competence than a Crew Level 1 or 2 employee.

12.4 Dive Master/Diver Instructor

An employee at this level will perform all diving duties as required, including:

· instructing and supervising diving operations;

· ensuring adherence to all legislative and regulatory requirements;

· preparing vessels for departure and setting, trimming and striking sails as required;

· stocking and dispensing liquor under supervision of the licensee;

· preparation of meals;

· ordering of stores; and

· the performance of duties related to the operation of the vessel as required by the immediate supervisor, Coxswain or Master.

12.5 Coxswain