[2012] FWA 9092 |
|
DECISION |
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
Modern Awards Review 2012—Awards with no applications to vary
(AM2012/326)
Maritime Industry | |
VICE PRESIDENT WATSON |
SYDNEY, 26 OCTOBER 2012 |
Application to vary the Seagoing Industry Award 2010
Introduction
[1] This decision edited from a decision on transcript on 16 October 2012 concerns a proposal by the Fair Work Australia to vary the Seagoing Industry Award 20101 (the Award). The proposal arises from Sch. 5, Item 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) as part of the review of all modern awards of which Fair Work Australia is required to conduct after the first two years of all modern awards coming into effect (the 2012 Review).
[2] Part 2 of Schedule 5 to the Transitional Act requires Fair Work Australia to conduct a review of all modern awards. No applications to vary the Award were received from interested parties as part of the 2012 Review. In his statement of 17 November 2011 1, Justice Giudice stated at paragraph 4:
“The review would be based mainly on applications to vary modern awards. In some cases Fair Work Australia may also propose variations. It is likely that these proposed variations will be limited to technical and drafting matters”.
[3] A notice of listing and directions were issued by Fair Work Australia on 5 September 2012, attaching a list of 37 awards of which no applications to vary had been received. Fair Work Australia proposed draft determinations to vary 14 of these awards and interested parties were invited to make any comments in regard to the draft determinations. This Award was one of the awards which no draft determination was published.
The relevant legislation
[4] 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).”
[5] Further provisions of the Act are also applicable and relevant to the 2012 Review. Section 134 provides as follows:
“134 The modern awards objective
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.
...
138 Achieving 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 Variation
[6] On 7 September correspondence was received from the Australian Shipowners Association (ASA). The correspondence drew the tribunal’s attention to an anomaly that has arisen in the Award as a result of Part VI of the Navigation Act 1912 (Navigation Act) being repealed and replaced by the Coastal Trading (Revitalising Australian Shipping) Act 2012 (Coastal Trading Act) As a result of the coastal trading regime no longer being regulated by the Navigation Act 1912, the application provisions in the Award make reference to the incorrect legislation and use outdated terminology.
[7] In response to the ASAs correspondence, Deputy President Smith issued a draft determination on 13 September 2012 to correct the anomaly by replacing the word “permit” with “temporary licence” and references to the Navigation Act with the Coastal Trading Act. As the matter was contested, the file was allocated to as head of the relevant panel.
[8] The matter was listed for hearing on 16 October 2012 to allow interested parties the opportunity to make further submissions on the draft determination.
[9] At the hearing of this matter, ANL, IncoShips Pty Ltd, ASA, Shipping Australia Limited, CSL Australia, V Ships Australia, the Cement Industry Federation and National Bulk Commodities Group all made submissions in support of the draft determination.
[10] The Maritime Union of Australia (MUA) made submissions in support of the draft determination. The MUA also made further submissions in regard to varying clauses 4.1 and 24 of the Award to extend the classifications covered by the Award and provided a draft order to this effect. 2
[11] The Maritime Officers Union of Australia opposed the draft determination being issued until the continued operation of Part B of the Award has been formally reviewed. This decision relates to this contested matter.
[12] I am persuaded that there is an anomaly in the operation of the Award occasioned by the passage of the Coastal Trading Act and the replacement of a permit system with a licence system, and in particular the notion of temporary licences issued pursuant to that Act. The anomaly relates to the appropriate part of the Award that applies to shipping covered by a temporary licence. I also consider that that circumstance and the relevant coverage of the parts of the award can be described as an ambiguity as to which part of the Award applies. In my view it is appropriate to remedy that anomaly by making a determination in line with the draft determination that has been published and upon which the parties have made submissions.
[13] I consider that the ongoing application of Part B of the Award to temporary licence holders under the Coastal Trading Act is inconsistent with the intention of the Award and assumptions made during the legislative reform process.
[14] I propose to make those variations, however I will reserve the right of the parties to confer on the wording of item one of the draft determination in particular.
[15] I am also of the view that an anomaly exists in relation to the wording in clause 4.1 and I consider that the amendments sought at item 1 of the MUA's draft orders should also be made.
[16] I propose to make the determination with an operative date corresponding with the commencement of the amendments to the Fair Work Regulations 2009 as a result of the Navigation Act being repealed and replaced with the Coastal Trading Act, being 21 August 2012.
[17] In relation to any other matters that may arise in relation to the review of the Award, the review of course is ongoing. I accept the submissions of the parties that there should be discussions between the parties in relation to proposed revision of clause 24 in particular. I will relist the matter for report back conference and encourage the parties to confer further on outstanding proposals. The parties have liberty to apply for a relisting or a conference to assist in finalising the review of the Award.
VICE PRESIDENT WATSON
Appearances
M. Gibian of counsel for The Australian Maritime Officers’ Union
W. McNally for The Maritime Union of Australia
S. Meehan of counsel for the Australian Shipowners Association and Shipping Australia Limited
M. Seck of counsel for CSL Australia and V Ships Australia
K. Tredwell for the Cement Industry Federation and national Bulk Commodities group
Hearing Details
2012.
Sydney.
October 16.
2 Exhibit MUA2.
Printed by authority of the Commonwealth Government Printer
<Price code C, MA000122 PR530586>