[2020] FWCFB 5672


Fair Work Act 2009
s.156—4 yearly review of modern awards

4 yearly review of modern awards—Professional Diving Industry (Industrial) Award 2020



4 yearly review of modern awards – Professional Diving Industry (Industrial) Award – substantive issues – hours of work and payment of overtime for inshore divers Professional Diving Industry (Industrial) Award 2020 – final determination

[1] This decision finalises an outstanding issue concerning the ordinary hours of work and the payment of overtime under the Professional Diving Industry (Industrial) Award 2020 (Award). On 28 May 2020, we published a decision 1 (May decision) in which we expressed the provisional view that clause 30.1(a) of the Award should be amended to provide that daily overtime should be payable for work performed in excess of 7 hours and 36 minutes per day, consistent with a proposal advanced by the Australian Mines and Metals Association and Fremantle Commercial Diving. A draft determination incorporating our provisional view was published with the May decision.

[2] Interested parties were invited to comment on the draft determination by Thursday 18 June 2020. No submissions or comments were received prior to this date.

[3] On 13 August 2020, Indianic Group Pty Ltd sought permission to comment on the draft determination, and leave was granted to do so by Vice President Hatcher on 17 August 2020. A submission was filed by Indianic Group Pty Ltd on 19 August 2020. However, the submission was directed to clause 30.1(a) of the Award in its current form rather than the draft determination, and additionally raised new issues which were not the subject of the current proceedings. The position remains therefore that no party has expressed opposition to the provisional view expressed in the May decision.

[4] We confirm the view we expressed in the May decision. The variation is necessary to achieve the modern awards objective in s.134(1) of the Fair Work Act 2009, in that it will remove the current inconsistency between clause 30.1(a) and the hours of work provisions in clause 25.1. Accordingly, a final variation determination for the Award will be issued in conjunction with this decision in the same terms as the draft determination and will commence operation 14 days from the date of this decision.

al of the Fair Work Commission with the memeber's signature.


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