[2013] FWC 4033 |
FAIR WORK COMMISSION |
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
VSHIPS Australia Pty Ltd; CSL Australia Pty Ltd
(AM2012/346)
Maritime industry | |
VICE PRESIDENT WATSON |
SYDNEY, 21 JUNE 2013 |
Application to vary the Seagoing Industry Award 2010 - Preamble to Part B of the Award - Modern Awards objective - Fair Work Act 2009 - Fair Work (Transitional Provisions) Act 2009 - Navigation Act 1912 - Coastal Trading (Revitalising Australian Shipping) Act 2012.
Introduction
[1] This decision concerns one part of an application by VSHIPS Australia Pty Ltd (VSHIPS) and CSL Australia Pty Ltd (CSL) to vary the Seagoing Industry Award 2010 (the Award). This decision covers the amended application provided by VSHIPS and CSL and deals with the preamble to Part B of the Award. The application is made on the basis that portions of the Award have not been operating effectively, efficiently or in accordance with the modern award objectives.
[2] The matter was originally listed for hearing on 20 March 2013. At the hearing, VSHIPS and CSL were represented by Ms S Zeitz. Ms Zeitz handed up an amended application, and the matter was adjourned to allow the parties to put further written submissions on the amended application. The matter was listed for further hearing on 24 May 2013. With consent of the parties, evidence and submissions were put in relation to the preamble matter, and the remaining matters will be dealt with by further hearing at a later date.
[3] At the hearing, Mr M Gibian, of counsel, appeared for The Australian Maritime Officers’ Union (AMOU), Mr N Niven appeared for The Australian Institute of Marine and Power Engineers (AIMPE), Mr W McNally appeared for The Maritime Union of Australia (MUA) and Mr A Morris appeared for the Australian Shipowners’ Association (ASA) and Shipping Australia Limited (SAL).
[4] Each of these parties filed written submissions in response to the amended application. In addition, the National Bulk Commodities Group and Cement Industry Foundation provided written submissions but did not attend the hearing.
The Variation Sought
[5] The application by VSHIPS and CSL seeks to vary the preamble to Part B of the Award, and to add a new definition to clause 3 of the Award. The current form of the preamble to Part B reads:
“The following provisions are to apply to vessels granted a temporary licence under the Coastal Trading (Revitalising Australian Shipping) Act 2012 (Cth).”
[6] The variation sought by VSHIPS and CSL would change the preamble to read:
“The following provisions apply to a Temporary Licensed Ship”
[7] In addition, VSHIPS and CSL seek to have a definition of ‘Temporary Licensed Ship’ added to clause 3, which would read as follows:
“‘Temporary Licensed Ship’ means (for the application of Part B) a ship used to undertake a voyage authorised by a Temporary Licence issued under the Coastal Trading (Revitalising Australian Shipping) Act 2012 (Cth). For the purposes of this definition, ‘voyage’ has the same meaning as the Coastal Trading (Revitalising Australian Shipping) Act 2012 and applied from the commencement of loading, to carriage of cargo and completion of discharge.”
[8] When the Award was originally made, the preamble to Part B read:
“The following provisions are to apply to vessels granted a permit under the Navigation Act 1912 (Cth)”
[9] The preamble to Part B was varied by a decision ([2012] FWA 9092) and determination [PR530596] in August of 2012 due to changes in the legislative scheme governing permits and licensing in the coastal trade.
[10] Prior to the Coastal Trading (Revitalising Australian Shipping) Act 2012 (the Coastal Trading Act), the Award referred to vessels issued permits under the Navigation Act 1912 (Navigation Act).
Changes to the Legislative Scheme
[11] Prior to the introduction of the Coastal Trading Act, the Navigation Act 1912 (Navigation Act) gave the Minister the authority to issue either single voyage or continuing voyage permits to ships. At the time the Award was made, Part B applied to vessels which had a permit issued pursuant to s.286 of the Navigation Act, and which carried out coasting trade in accordance with that permit. Coasting trade was defined in s.7 of the Navigation Act. Part B did not apply to ships (such as foreign flagged ships) merely present in the Economic Exclusion Zone or in waters above the Australian continental shelf, unless they held a permit and were engaging in coastal trade or they were Australian ships as described in s 33 of the FW Act.
[12] Regulation 1.15E of the Fair Work Regulations 2009 (FW Regulations), at the time the Award was made, extended the coverage of the FW Act to permit ships present in the Economic Exclusion Zone or the waters above the continental shelf and engaging in coasting trade. The term ‘permit ship’ was defined in regulation 1.15B, and covered ships which were issued a permit under s.286 of the Navigation Act where the permit is in force and which engages in coasting trade under the permit.
[13] The regulation of coastal shipping previously governed by the Navigation Act is now governed by the Coastal Trading Act. Under the Coastal Trading Act, the Minister is able to issue three types of permits:
● A General Licence which allows vessels registered on the Australian General Shipping Register with unrestricted access to coastal trading for a period of up to five years;
● A Temporary Licence which permits a vessel to engage in coastal trading for a period of 12 months and for at least five voyages;
● An Emergency Licence which limits vessels to cargo or passenger movements in emergency situations.
[14] Licenses issued prior to the legislative changes were preserved in certain circumstances as Transitional General Licenses.
[15] The current regulation 1.15E of the FW Regulations extends coverage to emergency licensed ships, general licensed ships, temporary licensed ships and transitional general licensed ships, subject to the concurrent jurisdiction of foreign States and Australia’s international obligations regarding foreign ships. Regulation 1.03 defines a temporary licensed ship as a ship that is used to undertake a voyage authorised by a temporary licence.
[16] Under the current regulation 1.15B of the FW Regulations, ‘temporary licence’ has the meaning given by s.6(1) of the Coastal Trading Act. Section 6 of the Coastal Trading Act further states that the term ‘voyage’ as “the movement of a vessel from one port to another port in a way that would satisfy paragraph 7(1)(a), (b) or (c)” of the Coastal Trading Act.
[17] Section 7 of the Coastal Trading Act relevantly provides:
(1) For the purposes of this Act, and subject to subsection (2), a vessel is used to engage in coastal trading if, for or in connection with a commercial activity:
(a) the vessel:
(i) takes on board passengers or cargo at a port in a State or Territory; and
(ii) carries the passengers or cargo to a port in another State or Territory where some or all of the passengers disembark or some or all of the cargo is unloaded; or
(b) the vessel:
(i) takes on board passengers or cargo at a port in a State or Territory; and
(ii) carries the passengers or cargo to a port in the same State or Territory where some passengers disembark or some cargo is unloaded; and
(iii) carries passengers or cargo to a port in another State or Territory where some or all of the passengers disembark or some or all of the cargo is unloaded; or
(c) the vessel:
(i) takes on board passengers or cargo at a port in a State or Territory; and
(ii) carries the passengers or cargo to a port in the same State or Territory where some or all of the passengers disembark or some or all of the cargo is unloaded; and
(iii) is one in relation to which a declaration under subsection 12(2) is in force.
(2) Subsection (1) does not apply in respect of the following:
(a) a passenger who:
(i) holds a through ticket to or from a port outside Australia; and
(ii) disembarks at a port in Australia for transit purposes only;
(b) cargo that:
(i) is consigned on a through bill of lading to or from a port outside Australia; and
(ii) is unloaded at a port in Australia for transshipment only;
(c) passengers, or cargo, of a kind prescribed by the regulations for the purposes of this paragraph.
The Nature of the Award Review
[18] 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).”
[19] 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.”
[18] On the issue of the application of s.138 of the Act to the 2012 Review, the 2012 Review Full Bench stated: 1
“[33] We are satisfied that s.138 is relevant to the Review. The section deals with the content of modern awards and for the reasons given at paragraph [25] of our decision it is a factor to be considered in any variation to a modern award arising from the Review. We also accept that the observations of Tracey J in SDAEA v NRA (No.2), as to the distinction between that which is “necessary” and that which is merely desirable, albeit in a different context, are apposite to any consideration of s.138.
[34] While s.138 is relevant to the Review there is still the question of the extent of its impact and the circumstances in which it will have on an application to a variation determination. The supplementary submissions revealed a diversity of views about these issues. We are not persuaded that these issues have been the subject of sufficient debate at this stage. The precise impact of s.138 is a question best considered in the context of a particular application. We agree with the RCAV’s supplementary submission that “the nature of the evidence and the facts as found arising from that evidence will condition the exercise of power and the ultimate outcome required to be determined by the review.”
[20] The variation sought needs to be considered against this legislative test.
Should the variation be made?
[21] CSL and VSHIPS submit that the variation will remedy an ambiguity arising from the amendments to the Award required by the introduction of the Coastal Trading Act. In their submission, ambiguity is inconsistent with the modern award objectives.
[22] More specifically, CSL and VSHIPS submit that under the Navigation Act legislative scheme, Part B of the Award applied to permit ships only when they were actively engaging in the coasting trade, not merely because they were inside the economic exclusion zone or the waters above the continental shelf of Australia. They submit that Part B was intended to apply when a ship was not engaged in coastal trade. For example, if the ship had been issued with a permit but was on a ballast voyage, Part B would not apply, but once the ship commenced a ‘voyage’ within the meaning of s.7 of the Navigation Act the Award would then apply. They submit that the same position should apply now that the Coastal Trading Act governs the situation by way of provisions that are substantially the same.
[23] Further, CSL and VSHIPS submit that this interpretation reflects the plain meaning and intention of the Navigation Act at the time it was made. They submit that the intention of the framers of the Coastal Trading Act was that the level of coverage under the Navigation Act would be preserved by the Coastal Trading Act, and that as such an interpretation of the preamble to Part B which extends the scope of Award coverage would be contrary to the intended purpose of the Coastal Trading Act. CSL and VSHIPS submit that this gives rise to an ambiguity. In their submission, the variation to the preamble to Part B is necessary to clarify the application of the Award.
[24] The AMOU submits that a question may arise as to whether a vessel is undertaking a voyage authorised by a temporary licence when proceeding to a port to be loaded or on a ballast leg between two voyages. It submits that this issue should not be determined by way of varying the scope of the Award and that the scope of an award necessarily depends on the provisions of the Act. It submits that the Commission should not seek to cut across the legislative choices of parliament.
[25] In my view the Award should have clear provisions as to its scope and application. Important obligations arise from the Award and the need for compliance requires as much clarity as possible. The variations sought essentially utilise the concepts contained in the Coastal Trading Act. Those provisions expressly extend to loading and unloading as well as the voyage in between. It is accepted by all parties that it is unclear whether the concept extends beyond that. However I do not consider that it is desirable or consistent with the modern awards objective for this ambiguity to be left unresolved. If clarification emerges from a judicial determination of the scope of the legislation, this of course would be a basis for reviewing this position.
[26] In my view adopting the wording contained in the application is an appropriate way of resolving the ambiguity. No party has suggested any other credible alternative. I am therefore satisfied that CSL and VSHIPS have established a case for the variation and I will make the variation sought in the application by way of a determination [PR538111] to be issued with this decision. Other outstanding matters will be determined after the hearings are completed in relation to those matters.
VICE PRESIDENT WATSON
Appearances:
Ms S Zeitz for CSL and VSHIPS
Mr M Gibian, of counsel, for The Australian Maritime Officers’ Union
Mr N Niven for The Australian Institute of Marine and Power Engineers
Mr W McNally for The Maritime Union of Australia
Mr A Morris for the Australian Shipowners’ Association and Shipping Australia Limited
Hearing details:
2013.
Sydney.
May 24
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<Price code C, MA000122 PR538110 >