DECISION

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

4 yearly review of modern awards - Seagoing Industry Award 2010; Ports, Harbours and Enclosed Water Vessels Award 2010; Marine Towage Award 2010
(AM2016/5)

[1] There is an outstanding issue as to whether the coverage provisions of the Seagoing Industry Award 2010 (Seagoing Award) and the Ports, Harbours and Enclosed Water Vessels Award 2010 (Ports Award) interrelate in an appropriate and effective manner. This issue was identified in the Full Bench decision in Maritime Union of Australia v Sea Swift Pty Ltd issued on 8 February 2016. 1 In a decision issued on 24 February 20172 as part of the 4 yearly review of the Seagoing Award, the Ports Award and the Marine Towage Award 2010 (Towage Award), this issue was initially intended to have been resolved by the making of variations to the coverage provisions of the awards proposed by Sea Swift Pty Ltd (Sea Swift).3 On 30 June 2017 draft determinations for variations to the Seagoing Award, the Ports Award and the Towage Award to give effect to the 24 February 2017 decision were published, and interested parties were invited to file submissions in response. Sea Swift and the Maritime Union of Australia (MUA) both then filed submissions disagreeing with the draft determinations for the Seagoing Award and the Ports Award in differing but significant respects.

[2] On 8 November 2017 the Full Bench in this matter (at that time constituted by Vice President Hatcher, Deputy President Gooley and Commissioner Cambridge) issued a statement 4 expressing the preliminary view that, having reviewed the submissions received, it might be appropriate for the Seagoing Award and the Ports Award to be amalgamated to remove the potential for overlapping coverage and, additionally, expressing the preliminary view that the further amalgamation of the two awards with the Towage Award was worthy of consideration. A hearing was listed for 7 December 2017 to hear the submissions of interested parties in response to these preliminary views and any further submissions concerning the draft determinations published on 30 June 2017.

[3] On 6 December 2017, the MUA, Svitzer Australia Pty Ltd (Svitzer) and the Australian Mines and Metals Association Inc. (AMMA) filed written submissions expressing opposition to the preliminary views expressed in the 8 November 2017 statement. The hearing on 7 December 2017 was attended by the MUA, Sea Swift, the AMMA, Maritime Industry Australia Limited (MIAL), the Australian Institute of Marine and Power Engineers (AIMPE), SeaLink Travel Group (Sealink), Svitzer and the WA Inshore Boating Alliance. All parties at the hearing expressed opposition to the preliminary views expressed in the 8 November 2017 statement with the exception of Sea Swift, which declined to express a fixed view.

[4] On 1 February 2018 the Full Bench published a further statement 5 in which it indicated that it had reserved its decision in relation to the provisional review expressed in the 8 November 2017 statement, and if it was determined that the course of amalgamating the Seagoing Award, the Ports Award and the Towage Award would be pursued, an exposure draft of an amalgamated award would be published for the parties’ consideration. In the interim, to give effect to the decision of 24 February 2017, revised draft determinations were published, and interested parties were directed to provide any submissions in response by 15 February 2018.6

[5] Submissions were subsequently filed by the MUA, SeaLink and the AIMPE pursuant to this direction (albeit a number of submissions were filed late). The MUA submission of 15 February 2018 contended that the draft determinations remained flawed and left some employees award-free, and contained an alternative draft determination for the amendment of the coverage clause of the Ports Award to rectify the problem it identified. SeaLink agreed with the MUA’s criticism of the draft determinations that they would leave some employees award-free, but went on to contend that the Seagoing Award inappropriately covered its own ferry operation between Cape Jervis and Penneshaw in South Australia and that accordingly that the Ports Award should be varied to cover such work. The AIMPE supported the draft determinations proposed by the MUA and opposed the SeaLink proposal. On 1 June 2018 the Construction, Forestry, Mining, Maritime and Energy Union, which following amalgamation encompassed the coverage of the former MUA, filed a further submission opposing the SeaLink proposal.

[6] We have given further consideration to the preliminary views expressed in the 8 November 2017 statement. It has proved impracticable to prepare a workable exposure draft of an amalgamated award given the significant differences between the awards, particularly in respect of minimum wages and hours of work. It would require a work value case of significant dimension in order to be able to establish an integrated classification structure with properly set minimum wages, and absent the participation of the main interested parties this does not appear to be a viable proposition at the present time.

[7] Accordingly we will proceed to finalise the implementation of the 24 February 2017 decision. We note that no interested party (other than SeaLink and the AIMPE) has responded to the alternative draft determination advanced in the MUA submission of 15 February 2018. We direct that any interested party which wishes to respond to this proposal shall do so in writing within 21 days of the date of this decision. We will then proceed to determine to finality the coverage issues for the Seagoing Award, the Ports Award and the Towage Award.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2016] FWCFB 651

 2   [2017] FWCFB 1138

 3   Ibid at [12], [15]-[19], [33]

 4   [2017] FWCFB 5833

 5   [2018] FWCFB 504

 6   Ibid at [3]