FWA 6573
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years
Australian Institute of Marine and Power Engineers, The; Maritime Union of Australia, The; Australian Maritime Officers' Union, The
VICE PRESIDENT WATSON
MELBOURNE, 24 SEPTEMBER 2012
Application to vary the Marine Towage Award 2010 - technical variations to avoid confusion.
 This decision concerns a joint application by the Australian Institute of Marine and Power Engineers, the Australian Maritime Officers’ Union and the Maritime Union of Australia (jointly “the Applicants”) as part of the two year review of modern awards pursuant to Item 5 of Schedule 6 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) to vary the Marine Towage Award 2010 (the Award). 1
 The application was listed for mention and programming on 21 June 2012. Directions were issued requiring the Applicants to file submissions in support of the application by 2 July 2012, with other interested parties to file submissions in reply by 12 July 2012.
 A submission was received from the Applicants on 2 July 2012. No other submissions were filed. At the mention on 21 June 2012, the representative appearing on behalf of Svitzer Australia Pty Ltd and Teekay Shipping Pty Ltd advised the Tribunal that they did not object to the application. 2
The relevant legislation
 Sch. 5, Item 6 of the Transitional Act provides:
“(1) As soon as practicable after the second anniversary of the FW (safety net provisions) commencement day, FWA must conduct a review of all modern awards, other than modern enterprise awards and State reference public sector modern awards.
(2) In the review, FWA must consider whether the modern awards:
(a) achieve the modern awards objective; and
(b) are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.
(2A) The review must be such that each modern award is reviewed in its own right. However, this does not prevent FWA from reviewing 2 or more modern awards at the same time.
(3) FWA may make a determination varying any of the modern awards in any way that FWA considers appropriate to remedy any issues identified in the review.
(4) The modern awards objective applies to FWA making a variation under this item, and the minimum wages objective also applies if the variation relates to modern award minimum wages.
(5) FWA may advise persons or bodies about the review in any way FWA considers appropriate.
(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of FWA) has effect as if subsection (2) of that section included a reference to FWA’s powers under subitem (5).”
 Further provisions of the Act are also applicable and relevant to the 2012 Review. Section 134 provides as follows:
What is the modern awards objective?
(1) FWA must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce participation; and
(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and
(e) the principle of equal remuneration for work of equal or comparable value; and
(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and
(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.
This is the modern awards objective.
A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.”
 The application seeks to amend clauses 3.1, 13.1 and 14.1 of the Award to vary references to the term “tonnage” to read “tonnage/power units”. The Applicants submit that “tonnage/power units” was the terminology previously used in the industry in the Tugboat Industry Award 1999 and the term “units” was used in the Tug and Barge Industry Interim Award 2002. During the award modernisation process this change was made by consent. The Applicants submit that the omission of the term has led to confusion and created an anomaly where a person, if reading clause 13.1 of the Award without having reference to the definition of the term tonnage at clause 3.1, may misinterpret the classifications contained therein.
 The Applicants submit that the variation proposed will reduce the possibility of confusion and ensure the Award operates effectively and is simple and easy to understand in accordance with the modern awards objective.
 In my view this variation will remove a source of confusion and is an appropriate technical change which can only assist in the application of the Award. I will make a determination in the terms sought in the application.
 Clause 13.1 of the Award contains daily and weekly rates of pay. In order to make the process of adjusting the daily rates following adjustments in line with the Annual Wage Review more transparent, I propose to amend the Award by inserting a method of calculating the daily rate. The daily rate is calculated by dividing the relevant weekly rate by seven. If any party bound by the award has any difficulty with this variation they should contact my chambers within 14 days of this decision.
VICE PRESIDENT WATSON
Final written submissions:
AIMPE, AMOU and MUA - Joint Submission, 2 July 2012
2 Transcript of proceedings, 21 June 2012 PN10
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