| FWCFB 5273|
|FAIR WORK COMMISSION|
Australian Southern Bluefin Tuna (SBT) Industry Association Ltd
Fair Work Act 2009
s.160—Variation of modern award
SENIOR DEPUTY PRESIDENT HAMBERGER
SYDNEY, 10 NOVEMBER 2017
Application to vary the Ports, Harbours and Enclosed Water Vessels Award 2010 to remove ambiguity or uncertainty or to correct an error – Fair Work Act 2009 (Cth) s.160.
 The Australian Southern Bluefin Tuna (SBT) Industry Association Ltd (ASBTIAL) applied on 31 July 2017 for variations to the Ports, Harbours and Enclosed Water Vessels Award 2010 1 (the Ports Award). The application was made under s.160 of the Fair Work Act 2009 (Cth) (the FW Act). Section 160 provides that the Commission may make a determination varying a modern award to remove an ambiguity or uncertainty or to correct an error.
 The variations sought are as follows:
‘2.2.1 In clause 3 – definitions, insert a new definition Wild Catch Fishing Industry in alphabetical order in the following terms:
“Wild Catch Fishing Industry means the operation of an employer to catch fish and other seafood in their natural environment for commercial purposes. This includes only fish or seafood which have been grown to maturity without human intervention (that is all fish grown on farms are excluded from this definition”.
2.2.2 Insert a new clause 4.7.
New clause 4.7
“This award does not cover employees in the Wild Catch Fishing Industry (as defined in Clause 3 of this award).”
2.2.3 Renumber the existing clause 4.7 as 4.8.
2.2.4 Renumber the existing clause 4.8 as 4.9.’
 Following a mention on 21 August 2017, directions were issued seeking submissions from the applicant and any other party who wished to be heard on the application, including on the relevance of s.163 of the FW Act.
 Section 163(1) of the FW Act provides:
‘(1) The FWC must not make a determination varying a modern award so that certain employers or employees stop being covered by the award unless the FWC is satisfied that they will instead become covered by another modern award (other than the miscellaneous modern award) that is appropriate for them.’
Submissions by ASBTIAL
 ASBTIAL submits that the wild catch fishing industry (WCFI) has traditionally been award-free. This is largely a reflection of the highly variable and unique nature of the work activities and arrangements within the industry.
 The issue of award coverage for the WCFI was the subject of detailed written submissions by peak industry bodies, and consideration by the Full Bench of the Australian Industrial Relations Commission (AIRC), as part of stages 2 and 4 of the award modernisation process in 2008 and 2009. The issue was explicitly dealt with in relation to the aquaculture and miscellaneous modern awards. The outcome of that process was that the Full Bench of the AIRC ultimately accepted the submissions made by peak industry bodies that the award-free status of the WCFI should be retained and that it should not be subject to a modern award.
 As the WCFI was clearly and comprehensively dealt with in stages 2 and 4 of the award modernisation process, peak industry bodies and relevant unions in the WCFI did not participate in the consultation process for the maritime and port and harbour services industries, which formed part of stage 3 of the award modernisation process that resulted in the creation of the Ports Award. Throughout the stage 3 process, there was no reference to the WCFI, nor to the fishing industry more generally. ASBTIAL submits that this is not surprising, given that it had been dealt with in stages 2 and 4, and the various pre-reform awards and Notional Agreements Preserving State Awards (NAPSAs) that applied in the maritime and port and harbour services had never covered the WCFI.
 As it turned out, the Ports Award ended up including a coverage clause that ‘on an uninformed view’ could include the WCFI within the scope of the award. ASBTIAL submits that having regard to the history and nature of the WCFI, the history of the award modernisation process, and consideration of the industrial instruments underpinning the Ports Award, it is clear that the Ports Award does not, and was never intended to, cover the WCFI. Accordingly, ASBTIAL says it is not seeking to change the coverage of the Ports Award, because WCFI employees are not covered, and were never intended to be covered, by the Ports Award or any modern award. Instead, the application seeks to clarify this position in the text of the Ports Award.
 The only other party that has made a submission in relation to this matter is the Australian Workers’ Union (AWU). That submission confirms that the AWU does not object to the application ‘in principle’; however, it reserves its position ‘until further evidence in relation to the actual work performed has been filed’.
The award modernisation process
 On 3 September 2008, the Full Bench of the AIRC published a statement regarding stage 2 of the award modernisation process. 2 Activities regarding aquaculture were allocated to the Agricultural Group.
 On 31 October 2008, the AWU filed with the AIRC a draft Fish, Aquaculture and Marine Products Award 2010 (AWU Draft Award), which contained the following coverage clause:
‘This industry award applies throughout Australia to employers in the Producing and Processing of Fish, Aquaculture and Marine Products including fish purse seining or polling, fish farming, marine farming, aquaculture, pisciculture, mariculture, cultivation of live sea and freshwater products, breeding or spawning of fish and hatching of fish or marine products whether in or from the sea, rivers, dams, tanks, ponds, underwater cages, aquariums or other water source, holding, containing, penning, or harvesting of live fish or marine products or marine vegetation, cleaning, purging, flushing, packing, freezing, processing, preserving, smoking, treatment of fish or marine products, cultivation culling or treatment of live shellfish including marine farming of oysters, mussels, clams, scallops and abalone to the exclusion of any other modern award. However, the award does not apply to an employee excluded from award coverage by the Act.’
 The AWU Draft Award could be read as covering the WCFI, particularly in its reference to ‘harvesting of live fish’ and related processing activities.
 On the same day, the National Farmers Federation (NFF) filed submissions and a draft Agricultural Industry Award (NFF Draft Award), which explicitly excluded ‘wild catch fishing’ from its operation. The NFF submitted that wild catch fishing should not be included in the award.
 In November 2008, ASBTIAL and a number of other fishing industry associations filed submissions opposing the AWU Draft Award. ASBTIAL submitted in particular that its industry was not covered by an award and should remain award-free. Further submissions were made in late November and December 2008 along similar lines.
 On 23 January 2009, the Full Bench of the AIRC issued a statement which indicated that no exposure draft award would be published at that stage for the aquaculture industry, and that further consideration would be given to the industry in stage 4. 3
 On 24 July 2009, the AWU re-submitted a draft award for the ‘fish, aquaculture and marine products industry’, with a similar coverage clause to the previous draft. Written submissions were made by a number of seafood industry associations emphasising that the WCFI had always been award-free, and that award coverage would be unsuitable for the industry because of its unique characteristics.
 As part of the award modernisation consultation process, Commissioner Lewin held a hearing on 14 August 2009. The representative of the AWU, Mr Costa, indicated in response to a question from the Commissioner that the draft award was not intended to cover wild catch fishing, that the AWU was not proposing that a modern award cover wild catch fishing, and that ‘wild catch fishing has never been award covered’. 4
 On 25 September 2009, the Full Bench of the AIRC published an exposure draft of the Aquaculture Industry Award 2010. The coverage clause stated that the award would apply to employers engaged in the ‘breeding, production, farming and related harvesting of fish, shellfish, crustacea and marine vegetation and operations ancillary thereto…’ (our emphasis).
 By limiting the exposure draft award to employers engaged in harvesting of fish that is related to ‘breeding, production [and] farming’, the WCFI was implicitly excluded from the ambit of the award. It can be inferred that the Full Bench accepted the submissions from the industry associations that the award should not cover the WCFI.
 On the same day, the Full Bench of the AIRC published an exposure draft of the Miscellaneous Award 2010 (the Miscellaneous Award). At a hearing before the Full Bench on 26 October 2009, Mr McMahon, on behalf of the National Agricultural Council, expressed concern that the Miscellaneous Award was in such broad terms that it could be read as covering the WCFI.
 On 4 December 2009, the Full Bench issued a statement which included the following:
‘We also note that the alterations to the coverage of the Miscellaneous Award 2010 should ensure that that award will not cover those parts of the aquaculture and fishing industries which have not previously been covered by awards and which are not covered by the Aquaculture Award 2010.’ 5
 In relation to the Miscellaneous Award, the Full Bench noted that the Ministerial Request indicated that the creation of modern awards was not intended to extend award coverage to those classes of employees who because of the nature (or seniority) of their role, had traditionally been award-free. 6 The Full Bench also referred to s.143(7) of the FW Act, which states that:
‘(7) A modern award must not be expressed to cover classes of employees:
(a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or
(b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.’
 The Full Bench decided to include in the Miscellaneous Award a clause explicitly excluding from the coverage of the award those classes of employees who, because of the nature (or seniority) of their role, had traditionally not been covered by awards.
 The Ports Award was dealt with as part of stage 3 of the award modernisation process. The Full Bench issued a statement on 30 January 2009 identifying the industries to be dealt with as part of that stage, which included the maritime industry and the ports and harbour services industry.7 The statement also provided an indicative list of awards and NAPSAs for each industry and occupation. None of the pre-reform awards and NAPSAs identified as relating to the maritime and ports and harbour services industries covered the fishing industry. Moreover, none of the parties involved in the development of what became the Ports Award referred to the fishing industry in their submissions.
 On 22 May 2009, the Commission published an exposure draft of the Ports Award. It included a definition of ‘ports, harbours, and enclosed water vessels industry’ as meaning ‘the operation of vessels of any type wholly or substantially within a port, harbour or other body of water within the Australian coastline’.
 The Maritime Union of Australia (MUA) and the Australian Institute of Marine and Power Engineers (AIMPE) objected to limiting the coverage of the award to vessels ‘within the Australian coastline’ in order to capture other craft who work beyond the coast, such as pipe laying vessels. No reference was made by either union (or any other party) to fishing industries and it is clear that no thought was given to the implications of the award for those industries.
 On 4 September 2009, the Full Bench issued its decision regarding the Ports Award. 8 It stated at :
‘The Maritime Union of Australia (MUA) and the Australian Institute of Marine and Power Engineers (AIMPE) sought to retitle the award as the Maritime Industry General Award to reflect a desire that the award apply to vessels which venture beyond ports and harbours. The current scope clause is not so confined but we have decided to make this clearer by adding additional words to the definition of the industry.’
 The Ports Award was then published with a coverage clause which includes the following:
‘This award covers employers throughout Australia in the ports, harbours and enclosed water vessels industry and their employees in the classifications listed in clause 13 to the exclusion of any other modern award. The award does not cover employers and employees wholly or substantially covered by the following awards:
(a) the Maritime Offshore Oil and Gas Award 2010;
(b) the Seagoing Industry Award 2010;
(c) the Port Authorities Award 2010;
(d) the Dredging Industry Award 2010;
(e) the Stevedoring Industry Award 2010;
(f) the Marine Towage Award 2010; and
(g) the Marine Tourism and Charter Vessels Award 2010.
For the purpose of clause 4.1, ports, harbours and enclosed water vessels industry means the operation of vessels of any type wholly or substantially within a port, harbour or other body of water within the Australian coastline or at sea on activities not covered by the above awards.’
 We turn first to consider whether the Ports Award covers the WCFI. If it does, then the prima facie operation of s.163(1) of the FW Act would prevent us making a determination varying the award so that employers or employees in the WCFI stop being covered by the award, unless we were satisfied that they would instead become covered by another modern award (other than the miscellaneous modern award) that is appropriate for them.
 On its face, the coverage clause in the Ports Award could be read as encompassing employers and employees in the WCFI. Employers in that industry do indeed operate vessels both within the Australian coastline and at sea, and their activities do not appear to be covered by any of the awards listed in clause 4.1 of the Ports Award. However, based on the analysis of the award history set out above, it would appear that, to the extent the Award does purport to cover the WCFI, it reflects an error that is amenable to correction by the Commission under s.160 of the Act.
 In this regard, we do not consider that s.163 prevents the Commission from varying an award to stop employees from being covered by it, in circumstances where they have become so covered in error. If it did so, such an error in relation to coverage could never be corrected. We note that s.160 is cast in general terms and allows the Commission to vary a modern award to remove ambiguity or uncertainty, or (presumably even where there is no ambiguity or uncertainty) to correct an error. There is no limitation imposed on the types of errors that may be corrected, such as errors in relation to coverage. While s.163 mandates that coverage is not to be reduced, we do not consider this to apply to erroneous coverage. This interpretation is consistent with s.143(7), which provides that a modern award ‘must not be expressed to cover classes of employees who… have traditionally not been covered by awards…’. (our emphasis)
 It is clear from the history of the award modernisation process that the Full Bench of the AIRC agreed that the WCFI had traditionally been award-free and that, consistent with s.143(7) of the FW Act, it should not be made subject to a modern award. Nothing in the making of the Ports Award in any way contradicts this.
 We are inclined to make the variations sought by ASBTIAL. However, we will give any interested parties four weeks from the date of this decision to make any submissions they might wish to make about whether we should adopt this course of action, including about the form of any determination and, in particular, the definition of ‘wild catch fishing industry’.
 We note that another Full Bench has expressed a preliminary view 9 that the Ports Award, the Seagoing Industry Award 201010 and the Marine Towage Award 201011 should be amalgamated. We anticipate this may result in further changes to award coverage in these industries. It is our view that the WCFI should remain award-free subsequent to those changes, if any.
SENIOR DEPUTY PRESIDENT
F McMahon for the Australian Southern Bluefin Tuna (SBT) Industry Association Ltd.
A Crabb for the Australian Workers’ Union.
2  AIRCFB 70.
3  AIRCFB 50.
5  AIRCFB 945 .
6 Ibid .
7  AIRCFB 100.
8  AIRCFB 826.
9  FWCFB 5833.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR596746>