Four yearly review of modern awards - [2015] FWCFB 1729

[2015] FWCFB 1729

The attached document replaces the document previously issued with the above code on 14 
May 2015.

The document has been amended to correct the header from page 23 of the decision onwards.

Associate to Vice President Watson

Dated 21 May 2015















1

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

STEVEDORING INDUSTRY AWARD 2010
(AM2014/90)

Stevedoring industry

VICE PRESIDENT WATSON
DEPUTY PRESIDENT KOVACIC 
COMMISSIONER ROE 

MELBOURNE, 14 MAY 2015

Four yearly review of modern awards - Stevedoring Industry Award 2010 - Coverage of 
Award - Changes to classifications - Ordinary hours of work - Penalty rates - Penalties and 
leave on public holidays - Fair Work Act 2009, ss. 156, 138 and 134.

Decision of Vice President Watson

Introduction

[1] On 11 November 2014 the President issued a direction that this Full Bench hear and 
determine the substantive issues raised during the 2014 four yearly review of modern awards 
with respect of the Stevedoring Industry Award 2010 (the Award). The award review is 
required to be conducted in accordance with s.156 of the Fair Work Act 2009 (the Act).

[2] Other provisions of the Act are also relevant including s.138 and the modern awards 
objective in s.134. 

[3] This Full Bench has dealt with these provisions and the approach to matters of this 
type in relation to the four yearly review for the Security Services Industry Award.1 I propose 
to apply the approach outlined in that decision to the determination of the issues in relation to 
this Award. 

[4] The issues that this Bench has been directed to determine are set out in Schedule C to 
the President’s directions as amended on 18 November 2014. The issues addressed by the 
parties in their submissions filed with the Commission concern the following:

 coverage of the Award - definition of “stevedoring industry”;
 appointment to classification requirement;
 insertion of the phrase “clerical, terminal operating system or information 

management system” in classifications;

[2015] FWCFB 1729

DECISION


E AUSTRALIA FairWork Commission




 



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 toggle operators;
 description of maintenance roles;
 ordinary hours of work;
 normal shift length;
 maximum working hours; 
 penalty rates; and
 additional day of leave for working on certain public holidays.

[5] The Bench is agreed on the course to be adopted in relation to all of the matters argued 
before us - except for the issue of penalty rates. Hence the other members of the Bench are 
issuing a separate decision dealing with penalty rates in particular.

[6] I propose to consider each of the above matters in turn. In doing so, I have regard to 
the factors required to be considered in the modern awards objective. In particular, I consider
whether the Award provides a fair and relevant minimum safety net of terms and conditions 
and whether the proposed variations are necessary to achieve the modern awards objective. 
These tests encompass many traditional merit considerations regarding proposed award 
variations. Given the importance of the modern awards objective to the matters that fall for 
determination it is appropriate to set out the objective in full:

“134 The modern awards objective

What is the modern awards objective?

(1) The FWC 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

(da) the need to provide additional remuneration for:

(i) employees working overtime; or

(ii) employees working unsocial, irregular or unpredictable hours; or

(iii) employees working on weekends or public holidays; or

(iv) employees working shifts; and








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(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.”

Coverage of the Award - definition of “stevedoring industry”

[7] At the hearing of this matter the MUA sought an alternative variation to that sought in 
its original application. It now seeks to replace the existing definition of “stevedoring 
industry” in clause 3 and insert new definitions of “stevedoring employee” and “stevedoring 
operations” into clause 3. This proposal affects the coverage of the Award. Clause 4.1 of the 
Award relevantly provides:

“4.1 This award covers employers throughout Australia engaged in the stevedoring 
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 Port Authorities Award 2010;

(b) the Coal Export Terminals Award 2010; and 

(c) the Sugar Industry Award 2010.”

[8] In order to apply this clause it is necessary to refer to the definition of “stevedoring 
industry” in clause 3 which provides:

“stevedoring industry means the loading and unloading of cargo into or from a ship 
including its transporting and storage at or adjacent to a wharf.”

[9] The MUA seeks to replace this definition with the following:

“stevedoring industry means the loading and unloading of cargo into or from a ship 
including its transporting and storage at, adjacent to or in the vicinity of a wharf.”

[10] The MUA also seeks to insert the following definitions derived from the Stevedoring 
Industry Award 1999 into clause 3:  








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“Stevedoring employee means a person who is employed in stevedoring operations.

Stevedoring operations means:

(a) the loading or unloading of all types of cargo including containers, motor vehicles 
and bulk liquid or non-liquid cargoes into or from ships;

(b) the loading or unloading, into or from ships, of ships stores, coal or fuel oil 
(whether bunkers or not), passengers’ luggage or mail;

(c) the receival, delivery, storage, handling or preparation of all types of cargo 
including containers, motor vehicles and cargo in unit forms or other goods, for the 
purpose of loading or unloading such cargoes into or from ships, and including the 
monitoring, maintenance and repair of refrigerated containers and other equipment;

(d) the driving or operation of all mechanical appliances or equipment used in relation 
to the receival, delivery, storage or handling of all types of cargo (including the 
moving of rail trucks) or used in relation to the unloading or loading of all types of 
cargo from and onto ships including the operation of ships gear and all equipment on 
board a ship used in relation to loading and unloading;

(e) the haulage or trucking of all types of cargo or other goods from wharf sheds, 
wharf storage or stacking areas to the ship or from the ship to the wharf shed, storage 
or stacking area;

(f) clerical functions involved in the tallying, receival, delivery, sorting and stacking, 
storage, or other work connected with the loading or unloading of cargo into or from 
ships (whether in containers or not) or involved in the receival, delivery, packing, 
unpacking, loading, unloading or storage of containers in preparation for loading into 
ships or after their discharge from ships. In connection with the foregoing work it may 
include those engaged in manifesting, freighting, preparation of ship’s cargo 
disposition, timekeeping, labour allocation, roster preparation, preparation and 
distribution of payrolls, maintenance stores functions, computer operation, operation 
of other equipment used in connection with electronic data processing, or any other 
clerical work in or in connection with stevedoring operations or a wharf office on a 
wharf or on a ship;

(g) maintenance, construction and repair work where such work is performed in 
relation to stevedoring operations by maintenance tradespersons and maintenance 
tradespersons special class in relation to any vehicles, mechanical and/or electrical 
equipment, buildings, materials or facilities;

(h) watching, guarding and protection duties in relation to the operational activities 
and functions specified in this definition;

(i) the supervision, direction, checking and instruction of stevedoring employees;








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(j) general functions and duties such as the lashing and unlashing of containers, 
working in a ships hold, driving of motor vehicles including buses, marshalling, 
general cleaning, cleaning and attendance to amenities areas and offices, mooring and 
unmooring of ships, cleaning and maintenance of containers, preparation and 
maintenance and repair of gear and equipment used in loading and unloading, packing 
and unpacking of containers, pallets or flats and the sorting, stacking, preparing, or 
otherwise handling of loose goods and cargo, preparation and cleaning of ships’ holds, 
removal or replacement of beams or hatches, plugging and unplugging of refrigerated 
containers, preparatory or closing work in relation to the loading or unloading of ships, 
the handling of dunnage or ballast, general inspection of vehicles and buildings, 
general duties in connection with the loading and unloading of ships and the provision 
of first aid.

(k) work of an employee required to plan, control, co-ordinate and integrate 
stevedoring operations in connection with vessels, and/or cargoes allocated to the 
employee by the employer, from time to time, and the work of other stevedoring 
employees in relation thereto, and to compile records, reports and information in 
connection therewith, but excluding the work of persons employed as wharf managers, 
assistant managers, and outside managers;

where any of the foregoing operations, functions or activities are carried out or 
performed by a stevedoring employee(s) as defined.

Wharf includes a pier, jetty, ramp, or shed, storage or stacking area at, adjacent to or
in the vicinity of a wharf.”

[11] The MUA is seeking this variation because of a number of disputes over the scope of 
the Award at various ports around Australia. The MUA led evidence that it had experienced 
some stevedoring employers seeking to redefine the industry to make it as small as possible 
and by utilising subsidiary companies to perform receiver and delivery work which they claim 
is not stevedoring work and is not covered by the Award. The MUA considers that this 
approach is leading to the engagement of employees on inferior terms and conditions to those 
under the Award. The variation appears to intend bringing operations of logistics companies 
such as those within the Patrick, Toll and Qube groups within the scope of the Stevedoring 
Award, whereas they had been regarded, at least by those companies as covered by the Road 
Transport and Distribution Award 2010. The MUA led evidence on these and other matters 
from the following witnesses:

 Mr Warren Smith 
 Mr Thomas Mayor 
 Mr Jamie Newlyn
 Mr Jason Campbell 
 Mr Kyle McGinn
 Mr Adrian Evans
 Mr Jeff Cassar  
 Mr Paul Sheehan 
 Mr Trevor Munday 








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[12] The change is strongly opposed by various employers, employer groups and unions 
including companies within the Qube Group, the DP World Group, the Patrick Group, the 
Australian Industry Group, the Toll Group, the Australian Road Transport Industry 
Organisation, Ports Australia, CSL Australia, Inco Ships, the Transport Workers’ Union and 
the Australian Workers’ Union. The thrust of these various submissions is that the MUA has 
failed to produce an evidentiary case that justifies the variations, the proposals represent an 
attempt to expand the coverage of the Award into areas of employment that have been subject 
to disputes in an attempt to reverse the position arising from those disputes, and that the 
expanded scope clause is inappropriate. 

[13] The employers and the opposing unions submit that the attempt to clarify or expand 
the coverage of the Award so that certain operations will no longer be regarded as covered by 
the Road Transport and Distribution Award cannot be judged as necessary to achieve the 
modern awards objective because the Road Transport and Distribution Award itself is 
consistent with the modern awards objective. The employers and others opposed led evidence 
on these and other matters from the following witnesses:

 Mr Greg Nugent 
 Mr Greg Muscat 
 Mr Michael Knowles 
 Mr Andrew Davies 
 Mr Damian Blake Arnold 
 Mr Kai-Yuan “Bob” Shueh 
 Mr David John Nash
 Mr Ross Duncan 
 Mr Paul Nieuwkerk 
 Mr Tony Brevi 
 Mr Ray Wyatt
 Mr Ian Smith
 Mr Tim Dawson 
 Mr Peter Biagini
 Mr Daniel Walton
 Mr James Huemmer

[14] The history of coverage clauses in modern awards discloses a largely consistent 
approach evident from various statements and decisions. Prior to the introduction of modern 
awards, awards were expressed to apply to nominated employer respondents, and also be 
binding on members of respondent registered employer organisations. Further, for many 
awards applying in Victoria, the Australian Capital Territory and the Northern Territory, all 
employers falling within the scope of the award were bound by it on a common rule basis. 
This reflected jurisdictional limitations arising from the industrial relations power of the 
Constitution supplemented in the case of Victoria by a referral of its industrial relations 
powers.

[15] The modern award system, established on the foundation of a different constitutional 
head of power, enabled awards to cover all constitutional corporations and other employers 
subject to a referral of powers by most State governments. Hence awards were mostly 
established on a national, industry basis, with a coverage clause expressed by reference to a 








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definition of the industry of the employer. The common formulation, of which this Award is 
an example, was for the award to apply to employers in the industry, as defined, in relation to 
employees falling within the scope of the classification definitions.

[16] When publishing an exposure draft for the Stevedoring Award the award 
modernisation Full Bench said:2

“[169] The Stevedoring Industry Award 2010 is proposed to cover the land based 
operations of employers who are involved in the loading and unloading of vessels. A 
number of exclusions have been included. Employees at bulk sugar terminals will be 
covered by the proposed Sugar Industry Award 2010. Employees at coal export 
terminals will be covered by the proposed Coal Export Terminals Award 2010...”

[17] The MUA expressed concerns about the draft and said as follows:

    “12. In order to address these concerns could we suggest with respect that: 

 A definition of ‘cargo’ be inserted in these words: “‘cargo’ includes shops stores, 
fuel oil (whether for bunkers or not), passengers’ luggage or mails”. The loading 
of coal is to be covered by a Coal Export Terminals Award 2010; and 

 That Stevedoring Industry be defined as “the loading and unloading of cargo into 
or from a ship including its transporting and storage at or adjacent to a wharf.” 
Ship is defined in the Exposure Draft and the FWA Act as including “a barge, 
lighter, hulk or other vessel” causing us to delete the words “or other vessel” 
from the industry definition.”

[18] In publishing the final award the Full Bench said:3

    “[222] Parties covered by this award did not raise significant areas of concern. 
Some minor changes have been made to the scope clause of this award such as 
inserting a definition of cargo and confining the list of vessels to “ship” as this term 
is defined broadly in the Fair Work Act. We have also excluded maintenance 
contractors. We have reduced the list of awards which prevail over this award to 
those of likely relevance.”

[19] The effect of the current provisions is that the Award covers stevedoring employers as 
defined in relation to those of its employees falling within the scope of the classification 
structure. In order to be covered by the Award an employer must be involved in the industry 
of the loading and unloading of cargo into or from a ship, albeit that its operations might also 
involve the transporting and storage of cargo at or adjacent to a wharf. Insofar as the 
proposals of the MUA seek to alter this basic structure, the changes are likely to lead to 
confusion. Even though the coverage clause refers only to the stevedoring industry and 
classifications of employees, the addition of definitions for “stevedoring employee” and 
“stevedoring operations” are intended to bear upon the scope of the Award, apparently 
because aspects of the classification definitions refer to stevedoring employee. It would be 
most unwise to seek to vary the scope of the Award through such a convoluted drafting 
technique - even if there was a justification for doing so.








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[20] The substantive change to the definition of “stevedoring industry” is also 
problematical. Although there has been some unfortunate disputation and litigation over the 
coverage of awards, it is difficult to see how this situation is remedied by the proposed 
variation. The notion of “transporting and storage at or adjacent to a wharf” is considerably 
clearer than “transporting and storage at, adjacent to or in the vicinity of a wharf” especially 
when the target operations sought to be covered include logistics companies that operate some 
distance from the wharf. Words that delineate the coverage of an award should be as clear as 
possible. In my view, the proposed variation would be likely to lead to more confusion and 
disputation than the current formulation.

[21] The parties referred to a recent dispute concerning the coverage of the Award in which 
Commissioner Cargill was called upon to consider whether the Award was required to be 
considered for the purposes of the better off overall test for approval of an enterprise 
agreement concerning Patrick Port Services. In her decision Commissioner Cargill said:4

“[108] There is no suggestion that PPL is engaged in loading or unloading of cargo 
into or from a ship. There is however a question about whether its activities are 
captured by the second part of the industry definition. The Statement of the Full Bench 
[2009] AIRCFB 450 dealing with the Stage 3 exposure drafts in the award 
modernisation process indicates that the Stevedoring Award was proposed to cover the 
land based operations of employers who are involved in loading and unloading 
vessels.

[109] The decision of the Full Bench which led to the making of the award [2009] 
AIRCFB 826 notes that parties had not raised any significant concerns with the 
exposure draft. The bench then states “(s)ome minor changes have been made to the 
scope clause of the award such as inserting a definition of cargo and confining the list 
of vessels to “ship” ...”.

[110] There is no specific mention of the additional words which are relevant in this 
matter, “including its transporting and storage at or adjacent to a wharf”. However, 
in the absence of any indication that the Bench had intended to do anything other than 
make “minor” changes to the scope clause, it would appear that the final award covers 
only employers who are engaged in the loading and unloading of cargo into or from a 
ship. PPL is not one of those employers and consequently is not in the stevedoring 
industry and not covered by the Stevedoring Award.”

[22] In exercising our powers to review the operation of the Award we are not simply 
interpreting the current coverage of the Award. To the extent that there is ambiguity in the 
operation of current provisions we have the power to remedy that situation. The existence of 
disputes over award coverage is to be avoided as far as possible by clear words in the 
coverage clause and related definitions. 

[23] The essential nature of stevedoring is the loading or unloading of cargo from a ship. 
Dictionary definitions reflect this. It can be expected that an employer in the business of 
loading and unloading cargo from ships would also be involved in the transportation and 
storage of cargo at or adjacent to a ship. However a business that engages in the transportation 








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and storage of cargo in the vicinity of a wharf is not involved in the stevedoring industry 
unless it is involved in the loading and unloading of cargo from ships. The essential nature of 
its business is the transportation and storage of cargo and the award that will usually cover it 
is the Road Transport and Distribution Award. I note the recent decision of a Full Bench 
which adopted the same interpretation of the existing coverage clause in dismissing an appeal 
against Commissioner Cargill’s decision.5 In my view, the coverage clause of the Award 
reflects this interpretation. If it does not, applications can be made to vary the coverage clause 
to remove the ambiguity.

Appointment to classification requirement

[24] The MUA proposes that five identically worded sub-clauses (b) be deleted from the 
following grades within “Schedule B - Classification Structure”: B.3 Grade 3, B.4 Grade 4, 
B.5 Grade 5 and B.6 Grade 6. In further submissions filed after the hearing of the matter, the 
MUA sought that the sub-clause (b) also be deleted from B.7 Grade 7. 

[25] In addition to identifying the training required and tasks performed by Grade 3, 4, 5, 6, 
and 7 employees, the relevant sub-clauses provide that the relevant employees have:

“(b) ... been trained and selected for appointment to the classification of stevedoring 
employee Grade # in accordance with the operational requirements of the employer’s 
enterprise.”

[26] The MUA submits that, but for this discretionary selection requirement contained in 
the sub-clauses, the role of production managers at the Brisbane Patrick Stevedores terminal 
and other roles within the production team at the Brisbane DP World terminal would be 
covered by Grade 6 of the Award. The MUA contends that some employers have used the 
requirement as the basis for taking the view that these employees are not involved in 
stevedoring operations and so, not covered by the Award. The MUA submits that the 
proposed variation is necessary in order to ensure that the classifications for Grades 3-7 
employees depend solely on the training required and the tasks performed, and capture roles 
such as those identified above.

[27] The MUA led evidence of disputes that had arisen in relation to these positions and 
that the employees engaged as production managers are properly regarded as involved in the 
stevedoring industry and should be covered by the Award.

[28] Various employers, including companies within the Qube group, the DP World Group, 
and the Patrick Group, are opposed to the variation. The Ai Group is also opposed to the 
variation. The thrust of these various submissions is that the MUA has failed to produce an 
evidentiary case that justifies the variations, that the proposals represent an attempt to re-
determine individual disputes regarding classification using the award review process rather 
than the appropriate forum for these matters, that the selection requirement is necessary and 
appropriate, and that the variation sought would result in uncertainty and require employers to 
bear a greater administrative and financial burden in classifying and paying employees. 

[29] The position of production manager at the Port Botany and Fisherman Island container 
terminals of Patrick Stevedores was the subject of an arbitrated dispute before Deputy 








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President Sams in 2013. The dispute related to consultation over changes in operations and 
the scope of the enterprise agreement which is in similar terms to the Award. The Deputy 
President said:6

“[44] Thirdly and most importantly, the Port Botany Production Manager’s role is, in 
my opinion, directly analogous to the same role at Fisherman Islands, where the 
following evidence disclosed:

(a) the role was first introduced in 2007;

(b) there was no suggestion at the time, or subsequently, that the position was 
not a management role;

(c) the Union has not sought to agitate a claim for either coverage of the role or 
its inclusion under the enterprise agreement;

(d) there has been no position put that the persons engaged as Production 
Managers should not be covered by individual contracts of employment;

(e) there was no evidence to suggest that the role was covered by an existing 
classification under the Agreement. I note the salary applicable to the role is 
above the highest Level 6 rate under the Agreement; and

(f) there was no dispute as to the recruitment process of Production Managers 
at the time, or subsequently, and unlike here, the advertising for the positions 
excluded internal applicants, seemingly without demur from the Union.

[45] In my assessment, the resemblance of the role to the Production Managers at 
Fisherman Islands is persuasive evidence telling against the Union’s arguments. 
However, even putting the Fisherman Islands experience to one side, I have no doubt 
that the Production Manager’s role at Port Botany is a management position, not 
contemplated by coverage under the Agreement. Once that finding is made, it seems to 
me that the Union’s case is doomed. It follows that:

(a) the consultation clause (cl 14) on significant change is not applicable; and

(b) Cl 9 is similarly is not applicable.”

[30] The employers led evidence of the need for the selection requirement. That evidence 
states that the selection requirement provides an orderly process for the classification of 
employees in circumstances where duties may change from day to day depending on the 
different vessel requirements. The employers submitted that the change would result in 
uncertainty and the likelihood of increased costs in circumstances where no adequate 
evidentiary case has been made out justifying the variations.

[31] I am not persuaded that an adequate case for the variations has been made out. The 
drafting technique has a considerable history and is supported by the employers. The 
arguments for change appear to be for the purpose of expanding award coverage to employees 








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who have been regarded as management employees. I am not satisfied that the change is 
necessary to achieve the modern awards objective.

Insertion of the phrase “clerical, terminal operating system or information management 
system” in classifications

[32] The MUA proposes replacing the word “clerical” with the phrase “clerical, terminal 
operating system or information management system” in the following sub-clauses contained 
in “Schedule B - Classification Structure”:

 B.2 Grade 2 (e), (f)
 B.3 Grade 3 (a), (a)(iv), (a)(vi)
 B.4 Grade 4 (a), (a)(iii), (a)(iv), (a)(v)
 B.5 Grade 5 (a)(i), (a)(ii)
 B.6 Grade 6 (a)(ii), (a)(iv) 
 B.7 Grade 7(a)(ii)

[33] The MUA contends that the introduction of new software and technology has been 
used by some employers to exclude certain clerical workers from the coverage of the Award, 
in particular those who oversee the computer-based movement of cargo within the terminal to 
ensure it goes to its correct destination. The MUA submits that the effect of this variation will 
be to clarify that the employees who operate the Terminal Operating System, the software 
program which tracks and manages movement of cargo within a terminal, are covered by the 
Award. 

[34] The various employers, including companies within the Qube group, the DP World
Group, the Patrick Group, are opposed to the variation and deny that they have used the 
introduction of new technology to exclude employees who are properly covered by the 
Award. The Ai Group is also opposed to the variation. The thrust of these various 
submissions is that the MUA has failed to produce an evidentiary case that justifies the 
variations, that the MUA’s submissions are based on a premise that all employees who 
perform work in which they are required to use a Terminal Operating System are covered by 
the Award, and that the variation may inappropriately bring employees under the coverage of 
the Award.  

[35] Evidence led by the employers established that managerial employees such as yard 
planners and supervisors regularly use the Terminal Operating System. They submitted that 
the mere expansion of the types of equipment used is no basis to expand existing award 
classifications.

[36] I am not persuaded that a sufficient case has been made out for the proposed 
variations. Classification definitions need to be carefully considered so that the Award applies 
to the appropriate classes of employees and the basis of classification is fair and equitable. 
Any expansion of award coverage requires a detailed evaluation of the implications of the 
change having regard to the current circumstances. It appears to me that the proposal is not 
adequately supported by a case that deals with all relevant considerations and may have 
undesirable consequences, intended or unintended.








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Toggle operators

[37] The MUA proposes replacing the word “operational” with the phrase “operational
(including toggle operations)” in the following sub-clauses contained in “Schedule B -
Classification Structure”: B.5 Grade 5 (a)(i), B.6 Grade 6 (a)(iv) and B.7 Grade 7 (a)(ii).

[38] The MUA contends that the role of toggle operator is a hybrid of both clerical and 
operational duties and that as automation and the use of computer systems to control 
machinery increases in the stevedoring industry in coming years, more of these hybrid roles 
will exist. The MUA further contends that toggle operators are key operational employees 
who are currently misclassified at a Grade 3 role at the Brisbane DP World terminal and are 
more appropriately classified at a Grade 5 level. Toggle operators are required to hold a crane 
operators ticket as well as perform clerical and control room functions in automated terminals. 
The MUA submits that the variation will clarify that employees performing the work of a 
toggle operator are covered by the Award. 

[39] The toggle operator job title is peculiar to the automated operations of DP World in 
the Port of Brisbane. The toggle operator observes and when required, manually operates 
Auto-Stacking Cranes using a hand held device. DP World submits that the Grade 5 
classification requires the person to be the key operational employee on a shift. It submits that 
the use of a toggle for crane operations is not directly relevant to this key classification 
requirement. It submits that the MUA has failed to justify reclassification based on a proper 
work value analysis. The Qube Group and Ai Group are also opposed to the variation.

[40] The thrust of the DP World and Qube submissions is that the MUA has failed to 
produce an evidentiary case that justifies the variations, that the proposals represent an 
attempt to use the award review process to achieve an outcome in relation to disputes that it 
has raised outside these proceedings, and that an employee’s classification should be 
appropriately determined by their skills and responsibilities within a given enterprise which 
may differ from port to port. The Patrick Group does not presently operate any Auto-Stacking 
Cranes to which toggle operations relate and submitted that if the Commission was to allow 
the variation that it should be made clear that it relates only to persons performing toggle 
operations in connection with Auto-Stacking Cranes and that it does not apply to persons 
operating other automated machinery. 

[41] As I understand the position of the parties, the relevant employer, DP World, does not 
contest the coverage of toggle operators under the Award. Rather, it currently classifies them 
at a lower level than the MUA believes they should be classified. It is appropriate in reviews 
of the Award to ensure that the classification definitions properly reflect the work value of the 
relevant classifications and adequately deal with changes in technology. Other means are also
available to review the classification of employees such as raising a dispute under the award 
dispute settlement clause. 

[42] I do not consider that the MUA has made out a sufficient case for change in the 
definitions or a change in the grading of toggle operators. Any such case must be based on 
proper work value comparisons and evidence of the actual duties of the employees concerned. 
Instead of clarifying coverage under the Award, as the MUA asserts, the insertion of toggle 








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operator terminology in multiple classifications, may cause undesirable confusion. In any 
event the employer has clarified that the toggle operators fall within the Award classifications.

Description of maintenance roles 

[43] The MUA proposes to have sub-paragraph B.6 (a)(iii) contained in “Schedule B -
Classification Structure” amended so that the maintenance of new technology introduced in 
port operations is sufficiently contained in the Award. The clause currently reads:

“A Grade 6 employee is an employee who has attained the level of either stevedoring 
employee Grade 4 or 5 and who has:

(a) completed additional training and has demonstrated competence in the skills 
required at this grade and performs such functions as are required by the employer 
from time to time in relation to:

…

(iii) is a maintenance tradesperson special class as defined;”

[44] The new wording sought by the MUA is as follows:

“A Grade 6 employee is an employee who has attained the level of either stevedoring 
employee Grade 4 or 5 and who has:

(a) completed additional training and has demonstrated competence in the skills 
required at this grade and performs such functions as are required by the employer 
from time to time in relation to:

…

(iii) Is a maintenance tradesperson special class as defined, and is a tradesperson 
involved in the upkeep and functioning of stevedoring equipment and the mechanical, 
electrical, electronic, software, communications, and navigation infrastructure that is 
involved in the operation of stevedoring equipment and the maintenance of the 
stevedoring terminal site.”

[45] The term “maintenance tradesperson special class” is currently defined in clause B.8 
as follows:

“B.8 Maintenance Tradesperson Special Class 

A maintenance tradesperson special class is an employee who is a maintenance 
tradesperson who has completed additional training to the level of an engineering 
tradesperson – special class level II as defined in the Manufacturing and Associated 
Industries and Occupations Award 2010, and who exercises the skills and knowledge 
required of an engineering tradesperson – special class level II.”








[2015] FWCFB 1729

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[46] The MUA contends that as stevedoring equipment and machinery becomes more 
integrated with electronics and other information systems, the nature of maintenance tasks 
required for the proper functioning of stevedoring equipment is changing. The MUA submits
that the introduction of new technology and its maintenance is not sufficiently reflected in the 
Award and therefore the description of maintenance roles needs to be varied to clarify these
changes. 

[47] Various employers, including companies within the Qube group, the DP World Group, 
and the Patrick Group, are opposed to the variation. The Ai Group is also opposed to the 
variation. The thrust of these various submissions is that the MUA has failed to produce an 
evidentiary case that justifies the variation, that the introduction of the variation would cause 
confusion given that the term is already defined in clause B.8 of the Award, and that the 
variation sought would appear to significantly extend the scope of the work of a maintenance 
tradesperson special class beyond its current scope of persons who have generally completed 
a Certificate IV in engineering. Hence, it is submitted that the variation may lead to an 
upward reclassification of employees properly classified as maintenance tradespersons and an 
extension of the Award to higher level engineering employees. The employers submit that the 
MUA has failed to advance a sufficient evidentiary case for such changes including the 
necessary work value analysis.

[48] In my view, an insufficient case for the variation has been made out. The current 
definition identifies the level of skill required to be classified as a Grade 6 employee. It does 
not limit the fields of engineering maintenance covered by it and would appear to cover 
employees required to exercise that level of skill regardless of the particular fields of expertise 
involved. To that extent the change is unnecessary. However, insofar as the change picks up 
references from lower classifications and builds in an alternative means of classification 
related to the types of maintenance that could be involved in a modern stevedoring operation,
it may well capture employees whose work value is different to the current classification 
level. The MUA has not advanced a sufficiently sound case to justify this change.

Ordinary hours of work

[49] The Stevedoring Employers (comprised of the Qube Group and the DP World Group) 
propose to amend the current “Ordinary hours of work and rostering” sub-clause 17.1 so that 
the ordinary hours of work are increased from an average of 35 per week to 38. References to 
35 ordinary hours per week would also need to be amended in the current “Shiftwork” sub-
clause 18.10 and the current “Rostering arrangements” sub-clause 18.14.

[50] The Stevedoring Employers note that this variation would also require consequential 
changes to other provisions of the Award which are currently premised on full time 
employees working 35 ordinary hours per week. This includes clauses which relate to normal 
shift work and maximum working hours and are dealt with below, in particular clauses 18.1, 
18.2, 18.12, 19.2 and 19.3. 

[51] The Stevedoring Employers contend that this provision, in conjunction with 
“Overtime rates” sub-clause 19.1, has the effect that any hours worked by a stevedore in 
excess of an average of 35 hours per week are paid at overtime rates. The Stevedoring 
Employers submit that a week consisting of a maximum of 35 ordinary hours is out of step 








[2015] FWCFB 1729

15

with most other moderns awards, and that this includes other industries that operate 24 hours 
a day and seven days a week. 

[52] There are 122 modern awards. 111 provide for 38 ordinary hours per week. Five 
provide for 35 hours in all cases and one provides for 35 hours for a sub-set of employees. 
The others provide for a number between 35 and 38.

[53] The 35 hour week was introduced into the Waterside Workers Award in 1972 by 
consent between the Waterside Workers Federation of Australia and the employer association 
representing stevedore employers. The variations were opposed by the Commonwealth 
Government but approved by the Commonwealth Conciliation and Arbitration Commission. 

[54] The Stevedoring Employers submit that the change was highly contingent on the 
circumstances at the time and those circumstances have largely ceased to exist. They submit 
that the nature of work is similar in a general sense to work in the manufacturing, 
construction, mining, transport and storage industries, and that stevedoring work is not 
necessarily of greater intensity than work in those industries.

[55] Evidence was led from a shift work expert, Mr James Huemmer on comparable 
industries in relation to hours of work, rostering, patterns of work, overtime and work on 
weekends and public holidays. The rostering and work allocation practices of stevedoring 
employers were explained by Mr Greg Nugent (Qube) and Mr Greg Muscat (DP World). It is 
apparent from this evidence that the rostering arrangements in the stevedoring industry 
provide a unique level of flexibility for employers by allowing them, on the day before the 
shift, to confirm whether work is required and nominate the shift starting time. A 
corresponding consequence of this flexibility is a significant inconvenience for employees 
who, for the most part, cannot plan the precise work, recreational activities and other 
responsibilities more than a day in advance.

[56] The MUA, the AWU and the TWU strongly oppose this proposed variation. The 
MUA contends that the adoption of a 35 hour week was a consent position that became 
standard in the 1960s and 1970s as a consequence of industrial negotiations that took place 
between the Association of Employers of Waterside Labour and the Waterside Workers’ 
Federation and that those negotiations had regard to the unique circumstances of continuing 
rapid technological change in this period. The MUA submits that distinct operations of the 
stevedoring industry continue to exist today and therefore the concept of a 35 hour week 
remains relevant. The Patrick Group does not oppose this proposed variation to the Award but 
otherwise made no substantive submissions in support of this variation. The Ai Group 
supports the variation. 

[57] When making modern awards, the Australian Industrial Relations Commission had 
primary regard to the existing instruments that were to be replaced and the impact on 
employers and employees of the proposed terms of modern awards. The Commission was 
required to endeavour to achieve an outcome that neither disadvantaged employees or added 
costs to employers. Hours of work were not standardised across awards. The limited 
industries that previously had awards containing a 35 hour week were covered by modern 
awards which maintained those provisions. In the case of the stevedoring industry there was a 
long history of a beneficial award entitlement based on discrete industry circumstances. A 








[2015] FWCFB 1729

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change to an award provision in these circumstances requires a strong case based on merit and 
the modern awards objective.

[58] The circumstances of the industry including the other award provisions are relevant to 
this proposal. Australia remains highly dependent on sea based transportation of cargo. New 
technology such as containerisation and automated wharf operations is designed to bring 
about significant productivity and efficiency improvements. Stevedoring labour must be 
sufficiently flexible to meet variable shipping movements. 

[59] While employees may be rostered to work on particular days in a roster cycle, the 
rosters are different to most other rosters that operate in other industries. The rosters do not 
guarantee work on the rostered days. Rather employees are expected to make themselves 
available on those days (subject to a limited number of refusals) and will not be rostered work 
on all of the days when they are effectively required, by virtue of their roster, to make 
themselves available.  Allocation of labour at container terminals is typically performed on a 
day to day basis and is dependent on shipping schedules, actual shipping movements and the 
progress of unloading and loading activities. 

[60] When rostered for work on a particular day, there is often no advanced notice of the 
time a shift is to be worked on that day until the day before. Employees are required to 
telephone an automated allocation system each day. They are then told whether they are 
rostered for work on the following day, and the time at which their shift will commence. Shift 
start times vary. For example, a day shift employee may be advised that the next day shift will 
start at 5, 6, 7 or 8 am. Evening shift starts may be 12, 1, 2, 3 or 4 pm. Night shifts may start 
at 9, 10 or 11 pm. They are usually not told the particular role they will be required to perform 
on that shift until the commencement of that shift. Fixed Salary Employees (FSEs) are usually 
rostered to perform their primary skill. Shifts can be extended at short notice. 

[61] Rosters may nominate “I” which means that the actual shift required to be worked may 
be day, evening or night or the employee may not be required to work that day at all. 
According to Mr Warren Smith, the only stevedoring workers who have rosters where more 
than 50% of the shifts are predictable are the permanent workers at the larger container 
terminals in Sydney, Melbourne and Adelaide.

[62] These procedures vary dependent on the type of employee concerned. FSEs work an 
average of 35 ordinary hours per week. They are usually rostered to a particular panel in the 
roster. They are told the usual shift length, which is often 8 hours, but this can be extended by 
up to 4 hours. Variable salary employees (VSEs) are effectively part-time employees. They 
have a minimum salary guarantee and are required to work a certain number of hours and a 
mix of shifts to make up that guarantee. They must also be reasonably available to meet the 
needs of the business by being available to work shifts on an irregular basis. Supplementary 
employees are similar to casual employees. They are not rostered to a particular panel. They 
work shifts when required and are used to supplement other categories of labour when 
needed.

[63] Stevedoring work is required to be performed on weekends and public holidays. 
Normally FSEs are rostered a standard number of Saturdays and Sundays. For example, at DP 
World Brisbane this is 29 Saturdays and/or Sundays a year. Other categories work a variable 








[2015] FWCFB 1729

17

number of weekend days. The type of shifts is usually organised in a particular way.  At DP 
World Brisbane approximately 1/3 of shifts are day shifts, 1/3 are evening shifts (similar to 
what are termed afternoon shifts in other industries) and 1/3 are night shifts. The starting time 
of the shift may vary from day to day.

[64] Stevedoring work is performed in accordance with enterprise agreements that provide 
for better terms and conditions than the Award. In particular the rate of pay under agreements 
is considerably higher than the Award rate. There is no evidence of any enterprise agreement 
adjusting the 35 hour week or trading off longer ordinary hours for the higher rate of pay. The 
35 hour week means that employees receive the weekly rate of pay for working 35 hours -
rather than 38, and overtime payments are payable after 35 hours are worked. This amounts to 
approximately an additional 8.5% increase on the hourly rate of the 35 hourly week worker 
compared to a 38 hourly week worker. The significance of a change in the number of ordinary 
hours arises at the time of renegotiation of enterprise agreements and the application of the 
better off overall test. If working under the Award, an employee would need to work an 
additional three hours work without additional payment and overtime would not be payable 
until more than 38 hours is worked. The Stevedoring Employers submitted that an appropriate 
adjustment to the weekly wage rates in the Award might also be contemplated if its 
application is granted.

[65] I am not satisfied that the Stevedoring Employers have established a sufficient case for 
the variation or that the variation is necessary to meet the modern awards objective. A 35 hour 
week is present in some awards for the similar historical reasons as the stevedoring industry. 
There is nothing inherently contrary to the modern awards objective in the continuation of this 
prescription. Further the highly unusual nature of shift allocation systems for waterfront 
labour warrant a swings and roundabout approach to award entitlements. Greater demands on 
employees that contribute to a more intrusive availability requirement than in most other areas 
of employment warrant a more generous ordinary hours prescription. This provides 
compensation for the inconvenience of the rostering arrangements in the stevedoring industry.
The allocation practices arising from the need for flexible labour requirements obviously 
contributed to the unique structure of the award hours provisions and remain relevant today. I 
would not grant the variation sought.       

Normal shift length

[66] If the proposed variation regarding ordinary hours of work is made by the Bench, the 
Stevedoring Employers propose altering the current “Shiftwork” clause 18 so that the normal 
length of a shift would be increased from 7 to 8 hours, and subsequent references to normal 
shift length made in the “Minimum payment for overtime” clause 19.2.

[67] As the members of this Bench reject the change to ordinary hours of work I do not 
propose to consider this matter further.

Maximum working hours

[68] If the proposed variation regarding ordinary hours of work is made by the Bench, the 
Stevedoring Employers propose that the current “Maximum duration of overtime” sub-clause 
19.3 be amended to increase the maximum working hours from eight to nine (where the 








[2015] FWCFB 1729

18

overtime attaches to any evening shift) and nine to ten (where the overtime attaches to a night
shift).

[69] This variation is not relevant given the decision of the Bench to reject the change to
ordinary hours of work.

Penalty rates 

[70] As the Bench is not agreed on the outcome of the applications for changes in penalty 
rates it is appropriate that I deal with the approach to the matter and the necessary analysis in 
some detail. As will be seen from the analysis below, the shift and weekend penalties in this 
Award are significantly higher than those in other modern awards. For the first time in very 
many decades stevedoring employers have challenged the existing level of these payments. A 
reconsideration of the fairness of the award penalty rates is clearly available under the 2014 
four year review process in a way that was not available in the process of making the modern 
award or the 2012 two year review process. I have concluded that there is no merit 
justification for the existing high level of penalty rates and that they are out of step with all 
other modern awards.

[71] Having put the current penalty rate regime in issue it is incumbent on this Commission 
to consider the merit of the award penalty payments based on contemporary circumstances. 
The legislative task does not allow historical inertia to be a determinative factor, or to base 
decisions on the identity of applicants and supporters. Rather, the Commission must ensure 
that the award penalty rates represent a fair and relevant minimum safety net having regard to 
the various elements of the modern awards objective.

[72] The context of making the original modern Stevedoring Award is relevant. When 
making the award in 2009, the scope to challenge the merit of existing award provisions was 
severely limited. I have observed in other proceedings that award modernisation was a 
process conducted by the Australian Industrial Relations Commission (AIRC) under the terms 
of Part 10A of the Workplace Relations Act 1996 (the WR Act). Pursuant to that part of the 
WR Act, the AIRC was required to perform its functions having regard to the factors in 
s.576B and in accordance with an award modernisation request made by the Minister under 
s.576C (the Ministerial Request). The s.576B factors included the desirability of reducing the 
number of awards operating in the workplace relations system. The original Ministerial
Request was issued on 28 March 2008 and was varied on eight occasions during the process. 
The Ministerial Request contained additional objects of the process, including that the 
creation of modern awards was not intended to disadvantage employees or increase costs for 
employers. The award modernisation request required the award modernisation process to be 
completed by 31 December 2009. 

[73] As a result of the award modernisation process, approximately 1,560 federal and state 
awards were reviewed over a period of about 18 months and replaced by 122 modern awards
by the award modernisation Full Bench of which I was a member. A further 199 applications 
to vary modern awards were made during this period. It is clear from any review of the 
process that the objects of rationalising the number of awards and attempting to balance the 
seemingly inconsistent objects of not disadvantaging employees and not leading to increased 
costs for employers attracted the vast majority of attention from the parties and the AIRC. It 








[2015] FWCFB 1729

19

was clearly not practical during the award modernisation process to conduct a comprehensive 
review of the industrial merit of the terms of the awards. Matters that were not put in issue by 
the parties were not subject to a merit determination in the conventional sense. Rather, terms 
were adopted from predecessor awards that minimised adverse changes to employees and 
employers. As the Full Bench explained on a number of occasions, the general approach was 
as follows:7

“[3] In general terms we have considered the applications in line with our general 
approach in establishing the terms of modern awards. We have had particular regard to 
the terms of existing instruments. Where there is significant disparity in those terms 
and conditions we have attached weight to the critical mass of provisions and terms 
which are clearly supported by arbitrated decisions and industrial merit. We have 
considered the impact of the provisions based on the information provided by the 
parties as to current practices.”

[74] Hence it is important to note the limited nature of the task undertaken by the award 
modernisation Full Bench. It is also important to note the scope of the review now being 
undertaken. The scope for review will indicate the nature of a case that will need to be run to
justify a change to an award provision.

[75] There are broadly three avenues for considering award variations under the Fair Work 
legislation: 

 the variation of awards outside of award reviews under ss. 157 or 160 of the Act;
 the variation of awards as part of the 2 year review under Item 6 of Schedule 5 of the 

Transitional Act, requiring the Commission to consider whether the awards achieve 
the modern awards objective, and are operating effectively; and 

 the variation of awards as part of the 4 yearly review under s.156 of the Act, required 
to be conducted as soon as practicable after each fourth anniversary of the 
commencement of the modern awards on 1 January 2010.

[76] As various Full Bench decisions make clear, the 4 yearly review is broader than the 2 
year review and broader than other mechanisms under ss. 157 and 160 to seek changes to 
awards. The 2 year review process nevertheless permitted changes to award provisions that 
did not provide a fair and relevant minimum safety net. For example in relation to a review of 
standard award flexibility clauses as part of the 2 year review a Full Bench said:8

“[211] The variations proposed are necessary to remedy the issues identified in the 
Transitional Review and to ensure that the model award flexibility term and modern 
awards are operating effectively, without anomalies or technical problems arising from 
the award modernisation process. We are also satisfied that the variations proposed are 
‘necessary’ (within the meaning of s.138) to achieve the modern awards objective and 
will ensure that modern awards provide a fair and relevant minimum safety net of 
terms and conditions having regard to the matters set out at paragraphs 134(1)(a)-(h). 
In particular, the variations proposed will provide flexible modern work practices and 
reduce regulatory burden while taking into account the needs of the low paid and 
making the model flexibility term simpler and easier to understand.”








[2015] FWCFB 1729

20

[77] The Full Bench reviewing provisions regarding apprentice provisions of modern 
awards also considered whether the current provisions of awards represented a fair and 
relevant minimum safety net of terms and conditions of employment by reference to the 
factors in the modern awards objective. In various instances it was found that the provisions 
should be varied based on merit considerations including fairness, equity and other grounds. It 
is clear from the decision that the task involved a broad judgement of the type described, 
without applying a barrier that favours the retention of the status quo.

[78] The nature of the 4 year review has been explained by a Full Bench as follows:9

“[60] On the basis of the foregoing we would make the following general observations 
about the Review:

1. Section 156 sets out the requirement to conduct 4 yearly reviews of modern 
awards and what may be done in such reviews. The discretion in s.156(2) to 
make determinations varying modern awards and to make or revoke modern 
awards in a Review, is expressed in general terms. The scope of the discretion 
in s.156(2) is limited by other provisions of the FW Act.

In exercising its powers in a Review the Commission is exercising 
‘modern award powers’ (s.134(2)(a)) and this has important 
implications for the matters which the Commission must take into 
account and for any determination arising from a Review. In particular, 
the modern awards objective in s.134 applies to the Review.

2. The Commission must be constituted by a Full Bench to conduct a Review 
and to make determinations and modern awards in a Review. Section 582 
provides that the President may give directions about the conduct of a Review. 
The general provisions relating to the performance of the Commission’s 
functions apply to the Review. Sections 577 and 578 are particularly relevant 
in this regard. In conducting the Review the Commission is able to exercise its 
usual procedural powers, contained in Division 3 of Part 5-1 of the FW Act. 
Importantly, the Commission may inform itself in relation to the Review in 
such manner as it considers appropriate (s.590).

3. The Review is broader in scope than the Transitional Review of modern 
awards completed in 2013. The Commission is obliged to ensure that modern 
awards, together with the NES, provide a fair and relevant minimum safety net 
taking into account, among other things, the need to ensure a ‘stable’ modern 
award system (s.134(1)(g)). The need for a ‘stable’ modern award system 
suggests that a party seeking to vary a modern award in the context of the 
Review must advance a merit argument in support of the proposed variation. 
The extent of such an argument will depend on the circumstances. Some 
proposed changes may be self evident and can be determined with little 
formality. However, where a significant change is proposed it must be 
supported by a submission which addresses the relevant legislative provisions 
and be accompanied by probative evidence properly directed to demonstrating 
the facts supporting the proposed variation. In conducting the Review the 








[2015] FWCFB 1729

21

Commission will also have regard to the historical context applicable to each 
modern award and will take into account previous decisions relevant to any 
contested issue. The particular context in which those decisions were made will 
also need to be considered. Previous Full Bench decisions should generally be 
followed, in the absence of cogent reasons for not doing so. The Commission 
will proceed on the basis that prima facie the modern award being reviewed 
achieved the modern awards objective at the time that it was made.

4. The modern awards objective applies to the Review. The objective is very 
broadly expressed and is directed at ensuring that modern awards, together 
with the NES, provide a ‘fair and relevant minimum safety net of terms and 
conditions’.

5. In the Review the proponent of a variation to a modern award must 
demonstrate that if the modern award is varied in the manner proposed then it 
would only include terms to the extent necessary to achieve the modern awards 
objective (see s.138). What is ‘necessary’ in a particular case is a value 
judgment based on an assessment of the considerations in s.134(1)(a) to (h), 
having regard to the submissions and evidence directed to those considerations.

...”

[79] The application of the Stevedoring Employers needs to be considered in the light of 
the above. The application seeks to amend the current “Payment for shiftworkers” sub-clause 
18.5 so that a reduced number of penalty rates apply, no penalty rates are payable during day
shift and reduced penalties apply for evening and night shifts. The clause currently reads:

“18.5 Payment for shiftworkers

All time worked will be paid as follows:

(a) day shift on Monday to Friday—no additional payment;

(b) day shift on Saturday—double the ordinary rate;

(c) day shift on Sunday—two and a half times the ordinary rate;

(d) evening shift on Monday to Friday—one and a half times the ordinary rate;

(e) evening shift on Saturday—double the ordinary rate;

(f) evening shift on Sunday—two and a half times the ordinary rate;

(g) night shift on Sunday to Friday—double the ordinary rate; and

(h) night shift on Saturday—two and a half times the ordinary rate.”

[80] The new clause sought by the Stevedoring Employers reads as follows:








[2015] FWCFB 1729

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“18.5 Payment for shiftworkers

All time worked will be paid as follows:

(a) day shift—no additional payment;

(b) evening shift on Monday to Friday—115% of the ordinary hourly rate;

(c) evening shift on Saturday and Sunday—150% of the ordinary hourly rate;

(d) night shift on Sunday to Friday—130% of the ordinary hourly rate; and

(e) night shift on Saturday—150% of the ordinary hourly rate.”

[81] The Stevedoring Employers submit that the shift penalties provided for in the Award 
are well in excess of equivalent provisions in almost every other modern award, and that this 
includes other industries which have a continuous operating environment and in which the 
working of non-standard hours as part of shift rosters is common practice. They further 
submit that the provisions of the clause are unduly complex in providing for eight different 
shift penalty arrangements. They contend that the proposed variation to shift penalties would 
bring the stevedoring industry into line with these other industries. The employers submit that 
lower penalties would decrease employment costs and provide greater scope and flexibility to 
operate efficiently and make necessary adjustments to their operations. They submit that the 
current provision makes costs for operating on weekends higher than is otherwise necessary
and that stevedoring operators have little opportunity to avoid these costs. The costs of 
stevedoring are passed on to customers and ultimately exporters and consumers of imported 
goods.

[82] The Stevedoring Employers submitted details of the weekend and shift penalties in 
every modern award. They provided a comparison between the relevant provisions in the 
Stevedoring Industry Award and ten other modern awards that they submitted provided an
appropriate benchmark. That comparison was as follows:








[2015] FWCFB 1729

23

TABLE 4 - SHIFT PENALTIES IN SELECTED AWARDS

Monday-Friday Saturday Sunday

Day penalty 
(%)

Evening 
penalty (%)

Night 
penalty (%)

Day penalty 
(%)

Evening 
penalty (%)

Night 
penalty (%)

Day penalty 
(%)

Evening 
penalty (%)

Night 
penalty (%)

Stevedoring Industry Award 2010 (Current) — 50 100 100 100 150 150 150 100

Stevedoring Industry Award 2010 
(Proposed)

— 15 30 — 50 50 — 50 30

Electrical Power Industry Award 2010 — 16 22.5 / 30* 50 50 50 100 100 100

Manufacturing and Associated Industries 
and Occupations Award 2010

— 15 15 / 30* 50 50 50 100 100 100

Mining Industry Award 2010 — 15 15 / 30* Until noon
First 3hr: 50 
Then: 100

After noon 
100

100 100 100 100 100

Nurses Award 2010 — 12.5 15 50 50 50 75 75 75

Port Authorities Award 2010 — 12.5 15 50 50 50 100 100 100

Road Transport and Distribution Award 
2010

— 17.5 30 50 50 50 100 100 100

Social, Community, Home Care and 
Disability Services Award 2010

— 12.5 15 50 50 50 100 100 100

Storage Services and Wholesale Award 
2010

—† 15 30 50° 50° 50° 100° 100° 100°

Timber Industry Award 2010 — 15 15 / 30* 50 50 50 100 100 100

Water Industry Award 2010 — 15 30 — 15 30 — 15 30

* The higher rate applies to shifts worked on permanent night shift.
† This award also provides for an early morning shift loading of 12.5%.
° Rate is for ordinary hours, which can be worked on Saturdays and Sundays by agreement. Without such agreement, overtime would be payable.








[2015] FWCFB 1729

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[83] The Stevedoring Employers led evidence on shift patterns in other industries. Mr 
Huemmer, a consultant in developing shift work rosters in many industries gave detailed 
evidence about shift work in the stevedoring industry compared to other industries. He said 
that while there are some differences, the similarities far outweigh the differences. He said 
many industries develop rosters based on both their repetitive, predictable workload and their 
less repetitive, less predictable workload. He said:

“In my experience, the stevedoring industry certainly has a dynamic workload that 
(with the help of the tides) rolls peak workloads all around the clock and all through 
the week.  This workload contributes to the need for flexibility (irregular shift 
assignments) in labour allocation.

However,  from my assessments  of planned  and actual patterns  of work, I do not find 
patterns  of work in the stevedoring  industry  to be any more  irregular  or any more 
unpredictable than patterns of work required  in other comparable  industries. For 
example, there are towage services and ship pilot operations in the maritime industry 
and all of the pools of casual, contractor and labour hire resources used in 
manufacturing, mining, services and other industries that share the same irregularity, 
unpredictability and patterns of work.”

[84] In relation to penalty rates he said:

“Some industries work more Saturdays, Sundays and public holidays than the 
stevedoring industry and some work less. The stevedoring  industry  is  similar to most  
24/7  industries and requires  similar  staffing  to  what  is  required  for  their 
operations during the week, Monday to Friday.

It is weekend and public holiday work that has the greatest impact on maintaining 
family and social activities for all workers regardless of industry. Although most 
workers admit that additional compensation (through penalty rates for these hours of 
work) helps, it does not fix the social impact.

Stevedoring requirements on weekends and public holidays are similar to requirements  
in other  industries,  so in  this  case,  I am not  aware  of any cogent reason to support  
why  different  penalty  rates  are  used  for  stevedoring  industry workers compared 
to workers from other industries.”

[85] The MUA, the AWU and the TWU oppose this proposed variation. The unions 
contend that the pattern of work in the stevedoring industry is casual and unpredictable with 
flexibility in start times being a longstanding feature. The MUA submits that the existing 
penalty rates in the Award continue to play a role in compensating stevedores for that 
flexibility and the need for them to work unsociable hours. The Patrick Group does not 
oppose this proposed variation to the Award but otherwise made no substantive submissions 
in support of these variations. Ai Group supported the proposed changes and said that the 
evidence establishes that the costly and inflexible minimum terms have ceased to be fair and 
relevant for the industry and are out of step with other interfacing industries. Ai Group 
submitted that the change is necessary to meet the modern awards objective and is supported 
by probative evidence of facts justifying the variation.








[2015] FWCFB 1729

25

[86] The evidence of Mr Smith, referred to above, provided detail of the extent of 
flexibility for employers and the lack of certainty employees have in the rostering 
arrangements that apply to many employees in the stevedoring industry. Most stevedoring 
employees do not have a roster and those who do have an element of unpredictability in their 
roster. As concluded above, these elements are not encountered in the vast majority of shift 
working arrangements for regular full time employees. They are common however for casual 
and labour hire employees.

[87] The comparative material between different modern awards establishes that the 
penalty provisions for stevedoring employers are well in excess of other awards:

 The common afternoon shift loading in awards is 15%. The Stevedoring Award is 
50%. 

 The common night shift allowance in awards is 15% or 30% for non rotating night 
shift workers. The Stevedoring Award is 100%. 

 The common Saturday penalty payment is 50% (time and a half). The Stevedoring 
Award provides for 100% (double time).

 The common Sunday penalty rate in awards in 100% (double time). The Stevedoring 
Award provides for 150% (double time and a half). 

[88] Even allowing for the unique needs of the industry and the unusual demands on 
employees, the differences appear to me to be out of all proportion. The combined effect of a 
35 hour week and the highly inflated penalty rate regime is that the payments to employees 
over the period of a week are approximately 50% more under the Stevedoring Award 
compared to the Manufacturing Award for the same classification of employee working a 7 
day 24 hour roster on the same award rate of pay. There is no merit justification for such a 
discrepancy in a minimum safety net award.

[89] The penalty provisions have a long history but the consensual nature of the provisions 
and the changes that have occurred since that time require a reconsideration of what are quite 
anomalous safety net provisions. New stevedores are entering the market. Automation is 
occurring. Ship volumes are increasing at the larger ports. These trends suggest that for many 
employees there will be increased predictability of working hours and their disabilities are 
more in line with those experienced in other industries. In my view, it is no longer sustainable 
to have an inflated penalty rates regime, inherited from another era, so out of proportion with 
the safety net provisions of other modern awards.

[90] In making the modern award in 2009, the AIRC did not consider the merit of the level 
of these provisions. Further, the common rule nature of the Award from 2010 means that all 
employers covered by the Award, regardless of the history of award coverage are bound by 
the abnormally high cost structures. This includes new business entrants and restructured 
corporate entities since the original consent position was established. 

[91] The disproportionate penalty regime impacts on overall costs and limits the flexibility 
that stevedoring businesses might be able to extract from their businesses. Lower costs and 
greater operational flexibility should translate to lower transportation costs in an increasingly 
competitive industry and flow on benefits to the general community, including exporters and 
consumers of imported goods. Where there is no unfairness to employees in bringing safety 
net penalty entitlements more into line with community standards, the benefits of the changes 
carry considerable weight.








[2015] FWCFB 1729

26

[92] Altering the award provisions should not have any immediate effect given the ongoing 
application of enterprise agreements. The parties will of course be free to agree on whatever 
mix of penalties and payments they can agree upon in future enterprise agreements. As a 
result of the above decision in relation to ordinary hours of work, the 35 hour week will 
continue to be reflected in the Award and provide an additional benefit that compensates for 
the level of unpredictability in stevedoring rosters.

[93] All of these matters are evident from the evidence and submissions before the 
Commission. This is not a case, such as with restaurants, where many employees are paid at 
the award level, and the award penalty rates are found to contribute to reduced opening hours 
and less employment at weekends. Employees under this award are paid well in excess of the 
award in accordance with enterprise agreements which reflect award penalty rates and higher 
base wages. It is not possible to adduce evidence of a current negative impact on employment 
opportunities or an immediate future positive impact on employment opportunities if penalty 
rates are reduced.

[94] Indeed the Stevedoring Employers did not put their arguments on such a basis. Their 
merit case is that the penalty payments in this Award are disproportionate to all other modern 
awards and the differences between the stevedoring industry and other industries are 
insufficient to justify such significant differences. They are not seeking a reduction to levels 
below the current standard penalty rates in other comparable awards. 

[95] The evidence establishes that the first proposition is correct without any doubt. The 
second proposition is more contentious but is really a question of degree. As indicated above 
there are aspects of stevedoring rostering that provide less predictability for employees than 
occurs in other industries. Nevertheless the evidence establishes that many of the disabilities 
of working in a 7 day—24 hour operation apply equally to many other categories of 
employees working under many other awards that provide a much lower safety net penalty 
rate regime.

[96] A fair and relevant minimum safety net is one that pays due regard to the requirements 
and disabilities of employees and the costs of employers and adopts penalty payments that 
deliver fair compensation for the inconvenience and disabilities concerned. The elements of 
the modern awards objective bear this out as the following analysis demonstrates. 

[97] Relative living standards and the needs of the low paid are not relevant for stevedoring 
employees who receive a high level of wages compared to many other workers engaged in 
physical labour.

[98] Collective bargaining is well entrenched in the stevedoring industry. Given the 
different rostering arrangements and different levels of inconvenience across the industry 
there is something to be said for dealing with those differences in enterprise agreements rather 
than a uniform penalty regime as is currently in the Award. At the very least this factor
supports a moderate approach to award penalties rather than an inflated approach.

[99] Increased workforce participation is probably not affected either way by award 
penalties, although a more standard approach to weekend penalties may encourage the 
engagement of more part time or casual employees on weekends and hence more spreading of 
employment opportunities.








[2015] FWCFB 1729

27

[100] Promoting flexible modern work practices and the efficient and productive 
performance of work is likely to be better achieved by adopting a more standard approach to 
award penalties.

[101] The need to provide additional remuneration for employees working shifts, weekends, 
irregular hours and unsociable hours is at the heart of this matter. However this case concerns 
the quantum of such additional remuneration in the circumstances of this industry. The 
employers are seeking an approach consistent with the standard approach in other awards. An 
approach which provides a fair level of compensation relative to other employees covered by 
other awards having regard to the similarities and differences in disabilities concerned is 
consistent with this objective.

[102] The principle of equal remuneration for work of equal or comparable value, as defined 
in s.302 of the Act, is probably not particularly relevant to award penalty rates in the 
stevedoring industry.

[103] It is clear from the evidence in this matter that other awards operating in the vicinity of 
stevedoring or which involve broadly comparable work and working conditions have a much 
lower award penalty rate regime. Business generally is enhanced by a more uniform and 
logical safety net that does not involve inexplicable spikes and anomalies. Stevedoring 
employers would be better off by having a safety net in line with other industries that operate 
in the general vicinity of their operations rather than one that is radically out of step. Fairness 
and efficiency are enhanced by a consistent approach to compensation for like disabilities.

[104] Clearly the objective of a simply, understandable, stable and sustainable award system 
is enhanced by comparable penalties for comparable disabilities across industries, especially 
as there is the potential for overlap of awards and close interaction between employees of 
different employers. A penalty rate regime in one award which is out of all proportion to the 
penalties in interfacing industries is anathema to this object.

[105] A more rational, fairer and consistent penalty rate regime is likely to impact 
favourably on prospects for employment growth, competitiveness and economic performance.

[106] Having regard to all of these factors, I am of the view that the evidence establishes a 
clear case that reductions in the disproportionate award penalty rates is necessary to achieve 
the modern awards objective and a fair and relevant minimum safety net of terms and 
conditions. The changes I believe should be made are as follows.

[107] Afternoon (or evening) shift allowances are usually around 15% in rotating shift 
rosters in comparable awards. This Award provides for 50%. In my view, 15% is an 
appropriate level for award evening shift allowances. I would propose to reduce the current 
allowances in two stages - 30% from 1 July 2015 and 15% from 1 July 2016. 

[108] Night shift allowances are usually 15% or 30% depending on industry circumstances. 
This Award provides for an allowance of 100%. I consider that the 30% level is appropriate. I 
would provide for the decrease in two stages - 50% from 1 July 2015 and 30% from 1 July 
2016.








[2015] FWCFB 1729

28

[109] Saturday work usually attracts a penalty payment that subsumes other applicable shift 
allowances. The usual provision is time and a half (50%). This Award is 100% for day and 
evening shifts and 150% for night shifts. I would propose to adopt the standard 50% Saturday 
loading. Again this should be achieved in two stages - 75%/100% from 1 July 2015 and 50% 
from 1 July 2016.

[110] Sunday work usually attracts a penalty of 100% in 24 hour/7 day industries. The 
Stevedoring Award penalties are 150% and 100% for night shift. I consider that the 100% 
level is appropriate. The reduction should be achieved in two stages - 125% from 1 July 2015 
and 100% from 1 July 2016.

[111] The evidence before the Commission justifies these variations as necessary to achieve 
the modern awards objective of a fair and relevant minimum safety net.

Additional day of leave for working on certain public holidays

[112] The Stevedoring Employers seek a variation to the “Public holidays” sub-clause 25.3. 
This provides employees with an entitlement to an additional day’s leave, in addition to 
penalty rates, for working Christmas Day, Good Friday, Anzac Day or Labour Day. The 
penalty payments for working a public holiday are double time and a half for day and evening 
shift and triple time for night shift. The Stevedoring Employers seek the removal of the 
additional leave provision from the Award. They do not seek to reduce the public holiday 
penalty rates.

[113] Historically, stevedore employees could be required to work on most public holidays. 
However, on certain public holidays they could not be required to work involuntarily. Those 
employees that did voluntarily work on these days were given an additional day of leave in 
addition to the public holiday penalty payments. The Stevedoring Employers submit that 
these four public holidays are no longer treated any differently to other public holidays under 
the Award and that employees who perform work on a public holiday are already sufficiently 
compensated for working by other provisions of the Award.

[114] The MUA, AWU and the TWU oppose this proposed variation. The unions contend 
that these closed port days are different to other public holidays with respect to the right to 
decline work, the required availability of workers, advance notification provided to workers 
for work allocation and payment for work performed on those days. The MUA also contends 
that removing this traditional award entitlement would undermine the bargaining for wage 
outcomes in relation to existing enterprise agreements. The Patrick Group does not oppose 
this proposed variation but otherwise made no substantive submissions. The Ai Group 
supports the variation. 

[115] The modern awards objective requires, among other things, that the Commission 
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 various matters 
including the need to provide additional remuneration for working on public holidays. In my 
view, there is a standard in awards that penalties are paid for work on public holidays. Double 
time and a half is a common provision. The employers have not sought to make out a case to 
change this entitlement. Against that background, the entitlement to an additional day of leave 
on top of the entitlement to penalty payments for working on a public holiday appears in my 








[2015] FWCFB 1729

29

view to be unnecessary to satisfy the modern awards objective and is not consistent with a fair 
and relevant minimum safety net.

[116] Also relevant is the fact that the National Employment Standards (see s.114 of the 
Act) provide that all employees covered by the national workplace relations system have a 
statutory right to refuse a request to work on a public holiday if the request is not reasonable 
or the refusal is reasonable. That statutory right, which first came into operation in March 
2006 as a result of the Workplace Relations Amendment (Work Choices) Act 2005, had the 
practical effect of removing any historical distinction between the four public holidays and 
other public holidays in terms of when stevedores could be required to work.

[117] Having taken into account these considerations, and having particular regard to the 
modern awards objective, this provision should be deleted.

Conclusions 

[118] A number of other substantive issues were set out in the directions issued by the 
President but were not raised in the submissions of the parties to this matter. The issues 
concern the following:

 annual leave and paid meal breaks entitlements for employees employed in the 
industry on 25 November 1991;

 calculation of overtime rates;
 public holiday penalty rates;
 rates of pay for “double headers”;
 entitlement to payment of accrued personal/carers’ leave on retirement;
 basis for calculation of cashing out of unused sick leave; 
 payment in lieu of excess accrued sick leave; and 
 public holiday payments made to shift workers rostered off on a public holiday.

[119] As no case has been made out for these variations the applications for these changes 
should be dismissed.

[120] The Bench has agreed that the removal of the entitlement to an additional day of leave 
for work on public holidays is necessary to achieve the modern awards objective of a fair and 
relevant safety net. 

[121] I have reached the same conclusion in relation to the level of shift and weekend 
penalties in the Award and would make further changes as outlined above. In their separate 
decision the other members of the Bench do not approve any changes to the penalty rates 
provisions. By majority those variations are not approved.

[122] The variation approved by the Full Bench is reflected in a determination issued in 
conjunction with this decision. 

Decision of Deputy President Kovacic and Commissioner Roe

[123] As noted at paragraph [5] of Vice President Watson’s decision, this Full Bench is 
agreed on the course to be adopted in relation to all of the matters before us except the issue 
of penalty rates. In acknowledging that agreement, we would point out that while we agree on 








[2015] FWCFB 1729

30

the course to be adopted we do not necessarily agree with all of the views expressed and/or 
observations made by Vice President Watson in his decision. For instance, we do not agree 
with the Vice President that the 35 hour week “provides compensation for the inconvenience 
of the rostering arrangements in the stevedoring industry.” As set out in paragraph [159] 
below, the material before us suggests that the level of penalty rates in the Award was to 
compensate for the irregularity of shifts. We also observe that the oil refining industry is one 
where the award provides for a 35 hour week as in the stevedoring industry but where there is 
not the notion of irregular shifts for normal full-time employees.

Penalty Rates

[124] Qube Ports Pty Ltd, Qube Bulk Pty Ltd and the DP World Group of companies 
(together the Applicants) sought to vary clause 18.5 of the Award to reduce the level of 
penalty rates. Specifically, the Applicants proposed that the clause be varied to provide as 
follows:

“All time worked will be paid as follows:
(a) day shift—no additional payment;
(b) evening shift on Monday to Friday— 115% of the ordinary hourly rate;
(c) evening shift on Saturday and Sunday—150% of the ordinary hourly rate;
(d) night shift on Sunday to Friday—130% of the ordinary hourly rate; and
(e) night shift on Saturday—150% of the ordinary hourly rate.”

[125] Clause 18.5 of the Award currently provides as follows:

“18.5 Payment for shiftworkers

All time worked will be paid as follows:
(a) day shift on Monday to Friday—no additional payment;
(b) day shift on Saturday—double the ordinary rate;
(c) day shift on Sunday—two and a half times the ordinary rate;
(d) evening shift on Monday to Friday—one and a half times the ordinary rate;
(e) evening shift on Saturday—double the ordinary rate;
(f) evening shift on Sunday—two and a half times the ordinary rate;
(g) night shift on Sunday to Friday—double the ordinary rate; and
(h) night shift on Saturday—two and a half times the ordinary rate.”

[126] The practical effect of the variations sought would be to:

 reduce evening shift penalties from 150 per cent to 115 per cent for Monday to Friday 
and from 200 per cent on Saturday and 250 per cent on Sunday to 150 per cent;

 reduce night shift penalties from 200 per cent to 130 per cent for Sunday to Friday
night and from 250 per cent on Saturday night to 150 per cent; and

 remove all penalties for working a day shift on a Saturday or Sunday from the current 
200 per cent for a Saturday day shift and from 250 per cent for a Sunday day shift.

The Applicants’ Submissions and Evidence

[127] The grounds on which the Applicants advocated for a reduction in the level of penalty 
rates were twofold. 








[2015] FWCFB 1729

31

[128] First, the existing levels in the Award were in excess of those provided for in other 
awards covering industries which operated on a 24/7 basis in circumstances where the 
Applicants argue that there is no difference between the working hours arrangements in the 
Award/stevedoring industry and the other awards/industries. On this ground, Mr Shariff, who 
appeared on behalf of the Applicants, stated that what “we are really attacking is the 
rationale, the logic, to why in 2015 one can justify the quantification of these penalty rates as 
they stand.”10

[129] Second, there was no basis for the different penalties applying to Saturday and Sunday 
work under the Award. On this issue, Mr Shariff submitted that “... the only relevant 
distinction between Saturday and Sunday rates is because it’s Sunday having particular 
significance last century, or for part of last century, but that can no longer be maintained.”11

[130] In their written submissions, the Applicants compared the penalty rates in the Award 
with those applying in a number of other modern awards. That comparison is set out in the 
Table incorporated in Vice President Watson’s decision (Table 4).

[131] The Applicants also addressed each of the considerations set out in the modern awards 
objective, submitting that the variations sought would help the Award better achieve the 
modern awards objective. With particular regard to the modern awards objective, the 
Applicants submitted, among other things, that:

 few stevedores are low paid;
 relatively few employees covered by the Award are award reliant, meaning that the 

proposed variations would have limited impact on the relative living standards of 
employees;

 the proposed variations would not compromise employees’ bargaining position, while 
providing employers more opportunity to strike bargains by which they obtain terms 
which are genuinely beneficial and improve productivity;

 the proposed variations may allow for more employees to be employed and rostered;
 the proposed variations would give employers in the industry greater scope to operate 

efficiently and make necessary adjustments to their operations;
 the proposed variations would over time reduce costs for employers in the industry; 

and
 reductions in employment costs are likely to flow on to the affordability of imported 

goods in Australia and the international competitiveness of Australian exports.12

[132] The Applicants relied on evidence from Mr Huemmer, a consultant who specialises in 
providing advice on the issues of rostering and hours of work. Key aspects of Mr Huemmer’s 
evidence were that:

 rostering arrangements in the stevedoring industry are similar to those operating in 
other industries working on a 24/7 basis;

 the intensity of work performed by employees in the stevedoring industry is similar to 
(and at times less intense) than the comparator industries;

 patterns of work in the stevedoring industry, like other industries, are customised to 
suit workload variations and other needs at each terminal port operation and also 
reflect employee interests in time off;








[2015] FWCFB 1729

32

 the seven week on and one week off roster arrangement commonly used in the 
stevedoring industry is not used in the other comparator industries;

 this roster arrangement provides many social opportunities during the one week off, 
but limits social opportunities during the seven week period of work required to create 
the one week break;

 employees working in the stevedoring industry have slightly less but similar sleep 
patterns and practice a similar number of health habits as employees working in other 
industries;

 the patterns of work in the stevedoring industry are no more or no less unsocial than 
the patterns used in comparable industries;

 patterns of work in the stevedoring industry are no more irregular or any more 
unpredictable than patterns of work in other comparable industries;

 work falling on weekends and public holidays in the stevedoring industry is very 
similar to work on weekends or public holidays for the comparator industries used; 
and

 working overtime in the stevedoring industry is the same or similar to working 
overtime in the comparator industries.

[133] Under cross examination, Mr Huemmer:

 agreed that it was common in many awards for there to be a provision requiring an 
employer to provide employees with a minimum period of notice of shift changes;13

 acknowledged that in the stevedoring industry the availability of work was contingent 
on a ship being in port for loading/unloading;14 and

 was unable to point to any other industry which required permanent employees to 
telephone their employer the afternoon before to make sure that they were required for 
work the following day.15

[134] Evidence was also given by Mr Nugent, the State Manager - Queensland for Qube 
Ports Pty Ltd, on behalf of the Applicants on the issue of penalty rates. In his witness 
statement Mr Nugent detailed the hours of work at Qube Ports’ Australian operations. In 
addition, he also detailed the proportion of day, evening, night, Saturday, Sunday, and public 
holiday shifts at the various categories of employees at the Port of Brisbane performed during 
the 2013/14 financial year. Under cross examination, Mr Nugent confirmed that employees 
were required to call in the afternoon to see whether they were required for work the 
following day. He also clarified aspects of the operation of the seven week on/one week off 
roster that applied at its facilities.

The MUA’s Submissions and Evidence

[135] The MUA opposed the Applicants’ application. The MUA submitted, inter alia, that 
penalty rates do not represent a new entitlement in the stevedoring industry having been 
introduced when work in the industry was very casual and unpredictable. The MUA further 
submitted that this reflects the current pattern of work in the industry and that although a 
degree of predictability was achieved in the some sections of the industry between the 1970’s 
and 1990’s, workers are now required to be much more flexible than they were during that 
period. The MUA also submitted that flexibility in start times has been a feature of the 
industry for a very long time, with the existing penalty rates compensating workers for that 
flexibility and the need for them to work at unsociable hours.16








[2015] FWCFB 1729

33

[136] Mr Warren Smith, the MUA’s Assistant National Secretary, provided evidence on the 
issue of penalty rates behalf of the MUA. Key aspects of Mr Smith’s evidence17 were that:

 Qube and DP World (i.e. the Applicants) represent a minority of stevedoring 
employers;

 24 hour shift work is almost always required in the industry;
 less than 20 per cent of the workforce in the industry have rosters in which more than 

50 per cent of shifts are predictable;
 most workers in the industry have no roster at all;
 only a minority of workers in the industry work according to a roster and those rosters 

incorporate extreme flexibility;
 in bulk and general stevedoring, most workers are now required to work 1820 hours 

per year (including annual leave) and under this arrangement there is no limit on the 
weekly hours of work, with those hours only being limited by the provisions for rest 
between shifts; 

 unusual features of work allocation in the industry include daily work allocation 
systems with as little as 12 hours notice for work, flexible shift start and finish times, 
shift extensions can be notified during a shift, and shift start times can change with as 
little as three hours notice;

 the examples provided by Mr Huemmer do not apply to the majority of workers in the 
industry;

 for example, at Qube only 48 workers in Brisbane and 22 workers in Melbourne are 
on rosters out of a total stevedoring workforce of 1650 workers;

 the Qube Brisbane roster has a very high degree of unpredictability - over an eight 
week cycle there are nine days where the worker is rostered off; and

 the only stevedoring workers who have rosters where more than 50 per cent of the 
shifts are predictable are permanent workers at the larger container terminals in 
Sydney, Melbourne and Adelaide (see table 4 of Mr Smith’s statement).

[137] Under cross examination Mr Smith affirmed that the rostering arrangements applying 
in the case of major stevedoring employers have been implemented pursuant to enterprise 
agreements negotiated with the MUA. Mr Smith also confirmed that the Award does not 
prescribe any particular rostering arrangement or any minimum/maximum amount of notice to 
be given to employees for a change of shift. Importantly, much of Mr Smith’s witness 
statement was not contested or challenged under cross examination.

Other submissions

[138] The Australian Industry Group (Ai Group) was the only party to support the 
Applicants’ application. The Ai Group submitted that the costly and inflexible minimum 
terms and conditions contained in the Award have ceased to be fair and relevant for the 
industry and are out of step with terms and conditions of other interfacing industries such as 
the road transport and distribution industry, and storage services industry. It further submitted 
that the variations proposed by the Applicants are necessary under s.138 of the Act to meet 
the modern awards objective and have been supported by probative evidence of the facts 
justifying the variation.18 The Ai Group led no evidence in support of its submission. Patrick 
in its outline of submissions stated that it did not oppose the variations to the Award proposed 








[2015] FWCFB 1729

34

by Applicants and that it did not presently wish to make further submissions in relations to 
those variations.19 No submissions were received from other stevedores on the issue.

[139] The AWU20 opposed the application, submitting that “if the industry has operated on 
a 24 hours-per-day basis for the last 35-40 years, it is difficult to identify what changes 
between 2009 and 2015 could justify a reduction to well-established shift loading rates.”21

The AWU also pointed to annual reports of the Applicant companies which they say 
demonstrate that the companies are successful and profitable.22 The TWU23 characterised the 
Applicants’ application as “doomed to fail”.

[140] Beyond the above submissions, no other party in the proceedings commented on or 
expressed a view on the Applicants’ proposed variations to penalty rates.

Key Considerations Regarding Applications to Vary an Award as part of the 4 yearly Review

[141] The Commission’s general approach to considering applications to vary modern 
awards as part of the 4 yearly review was set out in the preliminary issues decision issued by a 
Full Bench of the Commission24 in March 2014. Among other things, the Full Bench stated:

“[23] The Commission is obliged to ensure that modern awards, together with the 
NES, provide a fair and relevant minimum safety net taking into account, among other 
things, the need to ensure a ‘stable’ modern award system (s.134(1)(g)). The need for 
a ‘stable’ modern award system suggests that a party seeking to vary a modern award 
in the context of the Review must advance a merit argument in support of the 
proposed variation. The extent of such an argument will depend on the circumstances. 
We agree with ABI’s submission that some proposed changes may be self evident and 
can be determined with little formality. However, where a significant change is 
proposed it must be supported by a submission which addresses the relevant 
legislative provisions and be accompanied by probative evidence properly directed to 
demonstrating the facts supporting the proposed variation.

[24] In conducting the Review the Commission will also have regard to the historical 
context applicable to each modern award. Awards made as a result of the award 
modernisation process conducted by the former Australian Industrial Relations 
Commission (the AIRC) under Part 10A of the Workplace Relations Act 1996 (Cth) 
were deemed to be modern awards for the purposes of the FW Act (see Item 4 of 
Schedule 5 of the Transitional Act). Implicit in this is a legislative acceptance that at 
the time they were made the modern awards now being reviewed were consistent with 
the modern awards objective. The considerations specified in the legislative test 
applied by the AIRC in the Part 10A process is, in a number of important respects, 
identical or similar to the modern awards objective in s.134 of the FW Act. In the 
Review the Commission will proceed on the basis that prima facie the modern award 
being reviewed achieved the modern awards objective at the time that it was made.” 
(Underlining added)

[142] In its decision in respect of 4 yearly review of the Security Services Industry Award 
201025 (the Security Award decision) when discussing the approach to considering 
applications to vary modern awards this Full Bench stated:








[2015] FWCFB 1729

35

“[8] While this may be the first opportunity to seek significant changes to the terms of 
modern awards, a substantive case for change is nevertheless required. The more 
significant the change, in terms of impact or a lengthy history of particular award 
provisions, the more detailed the case must be. Variations to awards have rarely been 
made merely on the basis of bare requests or strongly contested submissions. In order 
to found a case for an award variation it is usually necessary to advance detailed 
evidence of the operation of the award, the impact of the current provisions on 
employers and employees covered by it and the likely impact of the proposed changes.
Such evidence should be combined with sound and balanced reasoning supporting a 
change. Ultimately the Commission must assess the evidence and submissions against 
the statutory tests set out above, principally whether the award provides a fair and 
relevant minimum safety net of terms and conditions and whether the proposed 
variations are necessary to achieve the modern awards objective. These tests 
encompass many traditional merit considerations regarding proposed award 
variations.” (Underlining added)

[143] We adopt the approach outlined in the Security Award decision to the determination of 
the issues in relation to this Award.

[144] To summarise, the key points which emerge from the above extracts are that:

(i) the Award achieved the modern awards objective at the time that it was made; and
(ii) an application seeking a significant change to an Award will need to be supported by 

submissions addressing the relevant legislative provisions and by probative evidence 
which will usually include evidence of the operation of the award, the impact of the 
current provisions on employers and employees covered by it and the likely impact of 
the proposed changes.  

Consideration of the Issues

[145] It was not disputed before the Full Bench that the level of penalty rates in the Award 
are above those applying in other modern awards.26

[146] Mr Huemmer’s evidence was effectively that the nature of the shift work arrangements 
applying in this industry are not significantly different to those operating in other industries 
working on a 24/7 basis. This raises questions as to whether the differential in penalty rates 
that currently exists between the Award and other modern awards remains appropriate. 
However, Mr Huemmer’s oral evidence also suggests that there are factors, such as aspects of 
this industry’s rostering arrangements, which are unique. 

[147] The existence of unique factors in this industry when compared to other industries 
operating on a 24/7 basis was reinforced by Mr Smith’s evidence on behalf of the MUA. 
Again, a key point of differentiation between this industry and other industries highlighted in 
Mr Smith’s evidence were the rostering arrangements which operate in this industry. As 
previously noted, much of Mr Smith’s witness statement was not contested or challenged 
under cross examination.

[148] This evidence is consistent with the observation made at paragraph [59] of Vice 
President Watson’s decision that while employees may be rostered to work on particular days 
in a roster cycle, the rosters are different to most other rosters that operate in other industries. 








[2015] FWCFB 1729

36

For instance, the rosters do not guarantee work on the rostered days. Further, it is important in 
our view to focus on the high level of flexibility and unpredictability in respect to working 
hours available under the Award rather than on the actual arrangements under existing 
enterprise agreements. In the absence of more detailed evidence and analysis it cannot, in our 
view, be assumed that reductions in the safety net will have no impact on future work rosters 
and bargaining in the industry.

[149] Taken together, the evidence supports a finding that there are factors unique to this 
industry which are relevant when considering the level of penalty rates in this Award 
necessary to meet the modern awards objective.  

[150] The question that ensues from such a finding is whether these unique factors continue 
to justify the existing level of penalty rates in the Award or some lower level taking into 
account the modern awards objective and the history of the existing provision. It is here where 
the evidence becomes critical in considering the changes proposed by the Applicants. To that 
end, consistent with the approach adopted in the Security Award decision, the onus falls on 
the Applicants “to advance detailed evidence of the operation of the award, the impact of the 
current provisions on employers and employees covered by it and the likely impact of the 
proposed changes”.

[151] The examination of the proposed variations against the modern awards objective in 
submissions and the proceedings before us was limited. For instance, the Applicants’ written 
submissions provided no indication of what the employment effects of the proposed variations 
might be other than a generalised statement that the changes may allow for more employees to 
be employed and rostered.27 We do not accept that it is not possible to model the potential 
effects of the changes, including on employment, in circumstances where the Applicants can 
draw on data relating to the mix of shifts worked at their operations and other relevant 
considerations concerning their operations such as labour requirements. As we noted at 
paragraph [134], Mr Nugent’s evidence detailed the proportion of day, evening, night, 
Saturday, Sunday, and public holiday shifts at the various categories of employees at the Port 
of Brisbane performed during the 2013/14 financial year.

[152] The Applicants’ submissions were similarly superficial and somewhat cursory 
regarding a number of the other elements of the modern awards objective.

[153] The evidence led by the Applicants focussed heavily on drawing comparisons between 
the nature of working arrangements and the level of penalty rates applying in this industry 
relative to a number of other industries which work on a 24/7 basis. However, the Applicants 
led little, if any, evidence regarding key considerations such as the impact of the current 
provisions on employers and employees covered by the Award and the likely impact of the 
proposed changes.  In the absence of probative evidence and analysis we are extremely loathe 
to speculate about the impact of the variations proposed by the Applicants on collective 
bargaining, consumer prices, productivity, investment, future working hours arrangements 
and the living standards of stevedoring workers.

[154] The lack of evidence led in support of the proposed removal of penalty rates for day 
shifts on Saturday and Sunday is indicative of the significant gaps in the Applicants’ 
evidentiary material. The Applicants evidence at Table 4 of Vice President Watson’s decision 
demonstrates that in nearly all comparator industries day work on a Saturday attracts a penalty 
of 50 per cent and on a Sunday a penalty of 100 per cent, yet the Applicants neither provided 








[2015] FWCFB 1729

37

any rationale for nor led any evidence to support their proposed removal of the penalties for 
weekend day shifts provided in the Award.

[155] Further, and consistent with the observation at paragraph [64] of Vice President 
Watson’s decision when discussing ordinary hours of work, no evidence was led by the 
Applicants of any enterprise agreement adjusting the level of penalty rates for the higher rate 
of pay.

[156] Together these factors support a finding that the evidence led by the Applicants is 
inadequate to justify the significant variations to penalty rates sought, particularly in 
circumstances where the evidence supports a finding that there are factors unique to this 
industry which are relevant when considering the level of penalty rates in this Award 
necessary to meet the modern awards objective.

[157] Also noteworthy in our view is that the position of other employers covered by the 
Award on the proposed variations to penalty rates is not known. Apart from the Applicants, 
no other stevedore expressed support for the proposed variations. While Patrick indicated in 
its submissions that it did not oppose the variations proposed, it made no further submission 
on the issue. Further, it is not clear to what, if any, extent the Ai Group (the only other party 
to support the Applicants’ proposed variations regarding penalty rates) represented the views 
of other stevedoring industry employers. In those circumstances, it would in our view be 
inappropriate to construe the absence of submissions from other stevedores on the penalty 
rates issue as indicating their consent to the variations proposed by the Applicants.

[158] Finally, the Applicants provided the Full Bench with material tracing the antecedents 
of the penalty rate regime in the Award back to 1928, though it was acknowledged that the 
existing provisions were the product of a consent award in 1967. The following extract from 
Justice Beeby’s 1928 decision in Waterside Workers’ Federation v Commonwealth Steamship 
Owners Association and Others28 illustrates the arbitrated basis for higher penalty rates in this 
Award was directly related to the unique working hours arrangements of the industry. 

“In most industries in which regular rotating shifts are worked workmen are paid 
extra rates ranging from 5 per cent to quarter time for rostered referring night shifts, 
but in this industry there is no regularity about the shifts, a man may work ordinary 
hours one day and be called on without notice to work a night shift on the next night. 
When starting night work he has no guarantee of a full shift.  He cannot arrange his 
domestic affairs to fit in with any ordered routine work.  His payment for his night 
work must be considered on an entirely different principle from those applied to 
regular shift workers.”29

[159] Interestingly, in that decision Beeby J determined that “shift workers should receive 
time and a quarter until midnight and time and a half thereafter.”30 A comparison of those 
shift penalties with those set out at Table 4 in Vice President Watson’s decision indicates that 
they are above those currently applying in comparable industries for afternoon and night shifts 
worked Monday to Friday. In short, the material points to a longstanding premium in terms of 
the penalty rates applying in this industry relative to other industries premised on there being 
“no regularity about the shifts”.

[160] The submissions of the parties demonstrate that the evolution and finalisation of the 
existing penalty rates regime in the Award took into account factors including employment 








[2015] FWCFB 1729

38

and productivity issues, particularly in the context of containerisation and the unique working 
time arrangements of the Award and industry. Although the modern awards objective is in 
different terms to the considerations in earlier legislation, there is a degree of commonality in 
the considerations utilised by the parties and the tribunal in earlier times. This is the case 
whether or not the arrangements evolved through consent awards or through contested 
arbitration. 

[161] While it is not disputed that the level of penalty rates in this industry are above those 
in comparable industries, we are not satisfied that the Applicants have established the case for 
their proposed variation to penalty rates or that the variation is necessary to meet the modern 
awards objective. In our view, the evidence before us indicates that there are factors unique to 
this industry when compared to other industries that work on a 24/7 basis. However, the 
Applicants and other parties who appeared before us failed to go the next step and provide 
probative evidence which would have enabled us to determine whether the existing or some 
other level of penalty rates was appropriate. On such a significant issue, it is just too 
simplistic to argue that the level of penalty rates should be reduced in the absence of such 
probative evidence and on the basis that the existing level of penalty rates in the Award are 
above those applying in other modern awards. We acknowledge that there is an important 
issue to be tested here. However, simply showing that the existing level of penalty rates are 
above those applying in comparable awards and industries is in our view insufficient, in the 
absence of probative evidence, to satisfy us that the Award needs to be varied to meet the 
modern awards objective. As discussed earlier, the Award achieved the modern awards 
objective at the time that it was made and the Applicants have not established that the Award 
no longer meets that objective.

[162] We observe, however, that it remains open for the Applicants and/or other parties to 
seek to address the evidentiary shortcomings we have identified in this case and make 
application under s.158 of the Act to vary the penalty rate provisions of the Award outside the 
next 4 yearly review or as part of that next 4 yearly review. 

VICE PRESIDENT

Appearances:

Mr B. McNally for the MUA.
Mr Y. Shariff for the Stevedoring Employers.
Mr S. Jauncey and Ms P. Flynn for the Patrick Group.
Mr B. Ferguson for the Ai Group.
Mr C. Gardner for the Toll Group.


THE OF THE FAIR WORK C. SEN THE NOISS




 



[2015] FWCFB 1729

39

Mr O. Fagir for the TWU. 
Mr S. Crawford for the AWU.
Mr P. Ryan for the ARTIO.

Hearing details:

2015.
Sydney.
4, 5, and 6 February. 

Printed by authority of the Commonwealth Government Printer

Price code G, MA000053  PR561949 

                                               
1 [2015] FWCFB 620.
2 [2009] AIRCFB 450.
3 [2009] AIRCFB 826.
4

[2015] FWCA 248.
5 [2015] FWCFB 2472, upholding the decision of Cargill C in [2015] FWCA 248.
6

[2013] FWC 6709.
7 Re General Retail Industry Award [2010] FWAFB 305. 
8 [2013] FWCFB 2170.
9 [2014] FWCFB 1788.
10 Transcript at PN142.
11 Ibid at PN1645.
12 Exhibit S9.
13 Ibid at PN221-223.
14 Ibid PN244.
15 Ibid at PN253.
16 Outline of Submissions of the Maritime Union of Australia in Reply to the 24 December 2014 Submissions of the Stevedoring Employers.
17 Exhibit M2.
18 Australian Industry Group Reply Submissions at paragraphs 144 and 145.
19 Outline of Submissions on Behalf of Patrick Companies in Response to Variations Proposed by Other Interested Persons and 

Organisations.
20 Outline of Submissions for the Australian Workers’ Union Regarding Variations Proposed by Stevedoring Employers and the Maritime 

Union of Australia at paragraph 6.
21 Outline of Submissions from the Australian Workers’ Union Regarding Variations Proposed by Stevedoring Employers and the Maritime 

Union of Australia at paragraph 17.
22 Exhibits C2 and C3.
23 Transcript at PN2022-2024.
24 [2014] FWCFB 1788.
25 [2015] FWCFB 620.
26 Ibid at PN1831.
27 Exhibit S9 at paragraph 75.
28 26 C.A.R at page 866.
29 Ibid at page 892.
30 Ibid.

Cases cited by this decision: