[2012] FWA 9323 |
|
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Part 2 of Schedule 5, item 6—Review of all modern awards (other than modern enterprise awards and State reference public sector modern awards) after first 2 years
Modern Awards Review 2012—Awards with no applications to vary
(AM2012/312)
Maritime industry | |
DEPUTY PRESIDENT SMITH |
MELBOURNE, 31 OCTOBER 2012 |
Application to vary the Maritime Offshore Oil and Gas Award 2010.
[1] These proceedings deal with the review of modern awards required by item 6 of Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) which requires Fair Work Australia to conduct a review of all modern awards (other than modern enterprise awards and State reference public sector modern awards) as soon as practicable after 1 January 2012.
[2] On 17 November 2011 the then President Justice Giudice issued a statement calling for applications to vary modern awards to form the basis of this review.
[3] As illustrated in my decision of 27 September 2012 1 no applications were received to specifically vary 37 modern awards. Of the 37 modern awards, two awards were the subject of further proceedings. These were the Maritime Offshore Oil and Gas Award 20102 (Award) and the Seagoing Industry Award 20103. This decision only concerns the former award.
[4] At the initial hearing for the Award on 21 September 2012 an issue arose in relation to the rates of pay for the Provisional IR—over 18 years classification in clauses 13.1(e) and (f) of the Award. It was submitted that these minimum annual rates were below the National Minimum Wage.
[5] On 27 September 2012 a draft determination proposing an increase in the relevant rates of pay was published on the Fair Work Australia website. This proposed change was intended to remove any misunderstanding between the operation of the modern award and employee’s entitlements to the National Minimum Wage under the Fair Work Act 2009 (Act). Directions were also issued on the same day seeking comment on the draft determination. Some correspondence was received in relation to the operative date from the Fair Work Ombudsman. No other correspondence was received.
[6] The subsequent hearing for the Award was held on 25 October 2012 at which there were no appearances.
[7] I have reviewed the Award in accordance with item 6 of Schedule 5 to the Transitional Act.
[8] I determine that there should be a variation to the Award to ensure that the Award:
[9] A determination reflecting the determination will be issued today. I propose to make the determination with an operative date earlier than the day on which the determination is made as I believe there are exceptional circumstances as envisaged by section 166 of the Act in that the relevant rates in the Award are below the National Minimum Wage. In my view it is appropriate to vary the award from the date on which the last annual wage review variation came into operation, namely 1 July 2012.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<Price code A, MA000086 PR530898>