MODERN AWARDS – 4 yearly review – ss.134, 156 Fair Work Act 2009 – Full Bench – Decision of Full Bench minority – on 23 March 2016 the President directed that a Full Bench hear and determine the substantive issues raised during the 4 yearly review of modern awards in respect of the Ports, Harbours and Enclosed Water Vessels Award 2010 (the PHEWV Award) and the Seagoing Industry Award 2010 (the Seagoing Award) – on 26 April 2016 the President issued directions that the Full Bench also hear and finalise the substantive issues raised in correspondence from Sea Swift P/L (Sea Swift) on 15 April 2016 in relation to the PHEWV Award, the Seagoing Award and the Marine Towage Award 2010 (the Towage Award) – in reviewing each award the Commission must have regard to the modern awards objective in s.134 of the Act – the modern awards objective is to ‘ensure that modern awards, together with the NES, provide a fair and relevant safety net of terms and conditions’ – the issues the Full Bench has been directed to determine concern: coverage issues in the PHEWV Award, the Seagoing Award and the Towage Award; the Small Ship classification under the Seagoing Award; casual classification under the Seagoing Award; and Electrician/Electro Technical Officer classifications – coverage issues – Sea Swift made this application arising out of a Full Bench decision in MUA and others v Sea Swift P/L [[2016] FWCFB 651] – Sea Swift submitted that the decision revealed a significant anomaly in the coverage provisions of the maritime awards – Sea Swift conducts various types of maritime activities under a single corporate umbrella, if the activities were carried out separately, they would be covered by the awards applicable to each type of operation – because the predominant part of the business has been found by the Full Bench to be covered by the Seagoing Award, that award applies to all of its operations – Sea Swift submitted that this outcome was not intended by the Full Bench in the award modernisation process and it places Sea Swift at a competitive disadvantage in conducting the operations other than seagoing operations – other employers support these variations – they submitted that where an employer conducts an operation that falls within a particular award, that award should apply to the employees in that operation regardless of whether other awards may apply to different parts of the employer’s operations – the maritime unions opposed the variations – minority Full Bench held it was appropriate that an employer that conducts various types of maritime activities be covered by the award that is relevant to each of those maritime activities – Small Ships schedule – Sea Swift and The Australian Institute of Marine and Power Engineers (AIMPE) sought variations to the classification structure of the Seagoing Award to provide for a different schedule of wage rates for vessels below a certain level of tonnage – currently the lowest schedule is for ships of less than 19,000 tonnes – Sea Swift submitted that prior to the introduction of modern awards, a previous award, known as the Self-propelled Barge and Small Ships Industry Award (Small Ships Award) covered a company that operated small vessels – AIMPE submitted that the termination of the Small Ships Award and the resultant lowest category of vessels of up to 19,000 tonnes have resulted in an anomaly for vessels which are much smaller – other employers support the inclusion of a schedule – The Maritime Union of Australia (MUA) and the Australian Maritime Officers’ Union (AMOU) opposed the variations – minority Full Bench held that the variations were necessary to achieve the modern awards objective – casual classification – Sea Swift sought the insertion of a classification for casual employees in addition to the relief classification rate in the Seagoing Award – minority Full Bench of the opinion a case for the amendments was not made out – held the intentions of the company could be fulfilled under the current award provisions – Electrician/Electro Technical Officer classifications – minority Full Bench held that that the new classifications, as agreed between the parties, were necessary to achieve the modern awards objective – Decision of Full Bench majority – the majority Full Bench agreed with the conclusions reached by the minority Full Bench in relation to the coverage issues in the PHEWV Award, the Seagoing Award and the Towage Award; casual classification under the Seagoing Award; and Electrician/Electro Technical Officer classifications – Small Ships schedule – currently employees engaged on vessels in the proposed Small Ships schedule would be classified and paid in accordance with clause 13.1(a) of the Seagoing Award – Sea Swift’s proposed rates were derived from the rates in the PHEWV Award as they were at the date of the application – AIMPE did not propose specific rates but sought rates based on the Selfpropelled Barges and Small Ships Award 2001 – majority Full Bench held that Sea Swift was proposing that employees’ rates of pay be significantly reduced – Sea Swift submitted that if there were any employees affected by the change then transitional arrangements could be put in place – clear the Small Ships Award and the Seagoing Award always had the potential for overlapping coverage – what is being sought in this application is a significant reduction in the minimum wages paid to employees who are engaged on vessels of less than 5000 tonnes – majority Full Bench found insufficient evidence before the Commission to support the proposition that qualifications are different for a vessel below 5000 dead tonne weight and vessels over 5000 dead tonne weight but below 19,000 tonnes – unable to conclude that there were work value considerations which mean that the rates of pay for persons who work on vessels of less than 5000 tonnes should be reduced – majority Full Bench dismissed the applications by Sea Swift and AIMPE to include a Small Ships schedule in the Seagoing Award. 4 yearly review of modern awards – Ports, Harbours and Enclosed Water Vessels Award 2010 and Ors
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