1
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards—Award stage – sub-group 3C
(AM2014/223 and others)
JUSTICE ROSS, PRESIDENT MELBOURNE, 7 NOVEMBER 2016
4 yearly review of modern awards - award stage - sub-group 3C - Maritime Awards.
[1] Section 156 of the Fair Work Act 2009 (the Act) requires the Fair Work Commission
(the Commission) to review all modern awards every four years (the Review). In the Award
stage of the Review the 122 modern awards have been divided into four groups and each
group has been divided into sub-groupings. Group 3 was divided into sub-groupings 3A–3D.
[2] The purpose of this Statement is to provide an update as to the status of the review of
the following awards in sub-group 3C:
(i) Dredging Industry Award 2010;
(ii) Marine Towage Award 2010;
(iii) Port Authorities Award 2010;
(iv) Ports, Harbours and Enclosed Water Vessels Award 2010; and
(v) Seagoing Industry Award 2010 (collectively, the Maritime Awards).
[3] The Commission published exposure drafts together with comparison documents
showing the changes made to the structure and language in the award for each of the Maritime
Awards on 15 January 2016. Interested parties were provided with an opportunity to file
written submissions and submissions in reply on the drafting and technical issues in the
exposure drafts. A summary of submissions was published for each of the Maritime Awards
between 23 and 30 May 2016 and on 6 June 2016 a mention was held in Sydney to:
(i) confirm that the published summaries of submissions were accurate and
reflected the parties’ positions;
(ii) identify any submissions or variations agreed or withdrawn; and
(iii) identify whether any matters raised in submissions were of a substantive nature
and required consideration by a specially constituted Full Bench.
[2016] FWC 7768
STATEMENT
E AUSTRALIA FairWork Commission
[2016] FWC 7768
2
[4] Following the 6 June 2016 mention, revised summaries of submissions (the revised
summaries) were published for each of the Maritime Awards on 24 June 2016. A conference
in relation to the review of these awards was held in Sydney on 4 August 2016 to discuss the
issues listed in the revised summaries.
[5] Reports setting out the matters discussed at the 4 August 2016 conference in respect of
each of the Maritime Awards are attached to this Statement as follows:
(i) Attachment 1—Report – Dredging Industry Award 2010;
(ii) Attachment 2—Report – Marine Towage Award 2010;
(iii) Attachment 3—Report – Port Authorities Award 2010;
(iv) Attachment 4—Report – Ports, Harbours and Enclosed Water Vessels Award
2010; and
(v) Attachment 5—Report – Seagoing Industry Award 2010.
[6] A brief summary of the outstanding technical and drafting matters for each of the
Maritime Awards is set out below.
(i) Dredging Industry Award 2010
[7] Draft directions setting out the process for dealing with the outstanding matters (items
2, 6, 7–11, 13, 14 and 25 of the revised summary of submissions) are set out at Attachment 6
to this Statement. Any comments on the draft directions are to be filed by 4.00 pm on
Monday 14 November 2016.
[8] In relation to item 12, the Commission has included weekly and hourly aggregated
wage rates for a shiftworker classified as a ‘trailer master’ or ‘chief engineer’. These rates
have been calculated based on the methodology used for calculating the ‘trailer shift master’
shiftworker rate. In addition, on 7 October 2016 the Commission’s research area sent the
interested parties correspondence1 in relation to the ‘aggregate wage’. The correspondence set
out findings in relation to the ‘aggregate wage’ definition and a calculation method that the
Maritime Union of Australia (MUA) had filed in the Commission during the award
modernisation process of 2008–09. Interested parties are asked to confirm if the MUA’s
methodology is correct and if so, whether it is proposed that the modern award rates be
adjusted accordingly. The correspondence was also published to the Review website
(AM2014/223). On 17 October 2016, a submission was received from the MUA.2 The MUA
submitted as follows:
“…the appropriate definition of aggregate rate is the one it proposed in its 14 April 2016
submission. In Print F8045 the Full Bench only provided an explanation of the aggregate
wage. In so doing they used the word “includes” that left open as to whether other matters
were incorporated into the aggregate rate. In contrast the definition proposed in the MUA’s 14
April 2016 submission is sourced from award terms and it is clear (see clause 3 of Part C of the
AP787991 - Maritime Industry Dredging Award 1998/clause 3.1.2 of Part C of the AP787991
- Maritime Industry Dredging Award 1998).
1 FWC Correspondence – 7 October 2016.
2 MUA submission – aggregate wage calculation – 17 October 2016.
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014223-sub-mua-17102016.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014223-corr-fwc-07102016.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/040816-am2014223andors.pdf
[2016] FWC 7768
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The “MUA methodology” as contained in the attached spreadsheet is correct. We submit that
the “MUA methodology” should be used to adjust the modern award rates.”
[9] In relation to item 13 – the higher duties provision – the Commission’s research area
has published research in relation to the provision’s award history with the issuing of this
Statement.3
[10] In relation to item 14, wage rates tables have been inserted for full-time, part-time and
casual employees who may be entitled to the dual certificate allowance that is payable for all
purposes. Parties are asked to consider which employees may act in a dual capacity of master
and engineer.
[11] The Australian Workers’ Union has withdrawn part of its claim with respect to item 20
and is now proposing that clause 13.3(a) be amended as follows:
‘A shiftwork loading of $6.05 per hour (30% of the hourly standard rate) is payable to an
employee working shiftwork and which shift commences at or after 6.00 pm on any Monday
to Friday inclusive.’
[12] In their submissions in reply to the revised Exposure Draft, the parties are to confirm
whether they wish to pursue the issues raised at items 21 and 22 of the revised summary of
submissions.
(ii) Marine Towage Award 2010
[13] There are no technical and drafting matters outstanding in relation to the Marine
Towage Award 2010.
(iii) Port Authorities Award 2010
[14] There is one outstanding matter (item 5) that will be determined by the Group 3 Full
Bench on the basis of the written submissions already filed.
(iv) Ports, Harbours and Enclosed Water Vessels Award 2010
[15] Items 2 and 12 will be addressed after the AM2016/5 Full Bench has determined the
substantive issues in relation to coverage (items 1, 3 and 4 of the revised summary of
submissions).
[16] Directions will be issued in relation to the filing of further material with respect to
items 7, 9, 20 and 23 of the revised summary of submissions. In relation to item 20 the
Commission’s research area has published a summary of the parties’ positions to date with the
issuing of this Statement.
[17] Parties will be provided with a further opportunity to comment on the issues in items
13, 19 and 21 of the revised summary of submissions after the revised Exposure Draft has
been published.
3 Item 13 – Higher duties provision – research – 31 October 2016.
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014223-dredging-item13-higher-duties-provision.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/phewv-item20-sub-summary.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-dredging-revised.pdf
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(i) Seagoing Industry Award 2010
[18] Parties will be provided with a further opportunity to comment in relation to the issues
in items 3, 9 and 15 of the revised summary of submissions.
[19] Maritime Industry Australia Ltd (MIAL) agreed to seek further instructions in relation
to items 4 and 17 of the revised summary of submissions, regarding temporary licenses, and
in doing so was asked to consider decision [2013] FWCFB 8338. On 3 October 2016 MIAL
filed a submission4 and reiterated its position that the wording of clause 6 of the Exposure
Draft creates potential for confusion. MIAL submitted:
‘Clause 6 implies that any vessel granted a temporary license under the Coastal Trading Act is
then covered by the Schedule A (presently Part B) of the award. This is not the case. …
MIAL considers that this potential confusion could be remedied by inserting a reference to
1.15B of the Fair Work Regulations in clause 6.’5
[20] With respect to MIAL’s consideration of decision [2013] FWCFB 8338, it submitted
as follows:
‘MIAL does not consider that the decision on Australian Maritime Offices Union v CSL
Australia Pty Ltd. [2013] FWCFB 8338 referenced by the Maritime Union of Australia has
application. That decision related to an appeal where it was found that the Commissioner had
erred in varying the award to resolve a perceived ambiguity in the FW Regulations,
simultaneously narrowing the definition of a temporary license.
MIAL’s position is related to confirming and referring to the existing definition in the FW
Regulations. MIAL is not seeking to change or even to restate the definition, but merely to
reference both the Coastal Trading Act and Regulations in section 6 of the SIA so that it is
clear that is where the definition of temporary licensed ships that would be covered by the SIA
is found.’
6
[21] In respect of item 9, the MUA was to provide a redraft of what was subclause 8.5(d)
and did so in its submission7 filed in the Commission on 28 September 2016. The MUA
proposed that clause 8.5 read as follows:
‘8.5 Minimum hours of rest
(a) An employer shall comply with the requirements of Marine Order 28 that states that unless
AMSA has granted an exemption under section 6 or emergency or drill or other overriding
operational conditions as defined in section 13 exist:
(1) The minimum hours of rest for a seafarer must be:
(a) 10 hours in any 24 hours; and
(b) 77 hours in any 7 days.
4 MIAL Submission - revised summary of submissions - items 4 and 17 3 October 2016.
5 Ibid at paras 6 and 8.
6 Ibid at paras 9–10.
7 MUA Submission - revised summary of submissions - item 9 28 September 2016.
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014243-sub-mua-280915.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014243-sub-mial-031015.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb8338.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb8338.htm
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(2) The minimum hours of rest may be divided into 2 periods, of which 1 period must
be at least 6 hours.
(3) The interval between consecutive periods of rest must not exceed 14 hours.
(b) Joining a vessel overseas
An employee required to travel overseas to join a vessel will be provided with adequate rest
before commencing duties.’
Next steps
[22] Revised exposure drafts have been published for the Dredging Industry Award 2010;
Ports, Harbours and Enclosed Water Vessels Award 2010; and Seagoing Industry Award
2010 with the issuing of this Statement.
[23] Draft directions setting out the process for dealing with the outstanding technical and
drafting matters identified in this Statement in respect of the modern awards named at
paragraph [22] are set out at Attachment 6. Any comments on the draft directions, or on the
reports attached, including any corrections, are to be provided by no later than 4.00pm on
Monday 14 November 2016. Final directions will be issued thereafter.
[24] All material should be sent to amod@fwc.gov.au.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code C, PR586926
Attachments
Attachment 1—Report – Dredging Industry Award 2010
Attachment 2—Report – Marine Towage Award 2010
Attachment 3—Report – Port Authorities Award 2010
Attachment 4—Report – Ports, Harbours and Enclosed Water Vessels Award 2010
Attachment 5—Report – Seagoing Industry Award 2010
Attachment 6—Draft directions
mailto:amod@fwc.gov.au
[2016] FWC 7768
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Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards
(AM2014/223)
DREDGING INDUSTRY AWARD 2010
[MA000085]
Dredging industry
JUSTICE ROSS, PRESIDENT MELBOURNE, 7 NOVEMBER 2016
4 yearly review of modern awards – Dredging Industry Award 2010.
[1] On 4 August 2016 a conference was held to discuss the revised summary of
submissions (the revised summary) published on 24 June 2016 in relation to the review of the
Dredging Industry Award 2010 (Dredging Award). The transcript of the conference
proceedings is available on the Review website (AM2014/223). The following parties
appeared before the Commission at the conference:
Australian Institute of Marine and Power Engineers;
Australian Maritime Officers’ Union;
The Australian Workers’ Union (AWU); and
Maritime Union of Australia (MUA).
[2] The following items in the revised summary were discussed at the conference:
Item 1: typographical error will be corrected.
Item 2: directions for the filing of further material will be issued.
Item 3: agreed, the words ‘at least’ will be deleted.
Item 4: agreed, clause 6.5(a)(ii) will be deleted.
Items 5 and 23: being dealt with by the Part-time and Casual Employment Full
Bench in AM2014/196 and AM2014/197.
Item 6: directions for the filing of further material will be issued.
Attachment 1—Report – Dredging Industry Award 2010
REPORT
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/am2014197-casual-employment
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/am2014196-part-time-employment
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/040816-am2014223andors.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/dredging-summary-revised.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/dredging-summary-revised.pdf
[2016] FWC 7768
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Items 7–11: the Commission will redraft subclauses 9.2 and 9.3 taking into
account the parties’ positions. Parties will be provided with an opportunity to
comment on the revised Exposure Draft.
Item 12: the Commission advised a rate would be provided for the ‘trailer master’
and ‘chief engineer’ shift worker classifications by adding relevant shift loadings
to the minimum weekly rate. Rates for these classifications have been inserted
into the revised Exposure Draft and were calculated based on the methodology
used for calculating the ‘trailer shift master’ shiftworker rate.
Item 13: the Commission’s research area will undertake research in relation to
the history of the higher duties provision and publish its findings. Directions will
be issued to provide parties with a further opportunity to file submissions in
relation to this issue.
Item 14: no change necessary as the allowance is paid for all purposes. Wage
rates tables will be inserted for full-time, part-time and casual employees who
may be entitled to the dual certificate allowance that is payable for all purposes.
In their submissions in reply to the revised Exposure Draft, parties are asked to
consider which employees may act in a dual capacity of master and engineer.
Item 15: the parties are agreed that the allowance should be paid weekly. The
words ‘per week’ will be inserted after the reference to ‘$39.35’ and the
Commission’s query will be removed from the revised Exposure Draft.
Item 16: the legislative references to the Navigation Act 2012 (Cth) will be
updated.
Item 17: the reference to the Seamen’s Compensation Act 1974 (Cth) will be
amended to the Seafarer's Rehabilitation and Compensation Act 1992 (Cth).
Item 18: the reference to clause 11.3(b)(ii) in clause 11.3(b)(iv) will be amended
to clause 11.3(b)(iii).
Item 19: agreed, shift work penalties will be based on the employee’s ordinary
hourly rate. The Commission’s query will be removed from the revised Exposure
Draft. Wage rates tables will be updated.
Item 20: the AWU has withdrawn part of its claim and is now proposing that
clause 13.3(a) be amended as follows:
‘A shiftwork loading of $6.05 per hour (30% of the hourly standard rate) is payable to
an employee working shiftwork and which shift commences at or after 6.00 pm on any
Monday to Friday inclusive.’
Items 21 and 22: in their submissions in reply to the revised Exposure Draft
parties are to confirm whether they wish to pursue these issues.
Item 24: in response to the Commission’s query, the MUA advised it is not aware
of any training programs that shouldn’t be covered by the schedule. The
Commission’s query will be removed from the revised Exposure Draft.
Item 25: the definition of ‘laid up’ will be amended. The defined term will
instead be ‘not fully operational’ and will include when a vessel is ‘laid up’. The
use of the term ‘laid up’ will be replaced with the term ‘not fully operational’
throughout the revised Exposure Draft (at clauses 11.2(b)(i), 11.2(e)(ii), B.1.1
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014223-dredging-item13-higher-duties-provision.pdf
[2016] FWC 7768
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and Schedule E). Parties will be provided with a further opportunity to consider
whether this amendment gives rise to any practical issues in their submissions in
reply to the revised Exposure Draft.
Next steps
[3] A revised Exposure Draft, further revised summary of submissions and findings in
relation to the research undertaken in respect of item 138 have been published with the issuing
of this report.
[4] Draft directions setting out the process for dealing with the outstanding technical and
drafting matters are set out at Attachment 6. Any comments on the draft directions are to be
filed by no later than 4.00pm on Monday 14 November 2016. Final directions will be issued
thereafter.
PRESIDENT
8 Item 13 – Higher duties provision – research – 31 October 2016.
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014223-dredging-item13-higher-duties-provision.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/dredging-summary-further-revised.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-dredging-revised.pdf
[2016] FWC 7768
9
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards
(AM2014/235)
MARINE TOWAGE AWARD 2010
[MA000050]
Ports authorities
JUSTICE ROSS, PRESIDENT MELBOURNE, 7 NOVEMBER 2016
4 yearly review of modern awards – Marine Towage Award 2010.
[1] On 4 August 2016 a conference was held to discuss the revised summary of
submissions (the revised summary) published on 24 June 2016 in relation to the review of the
Marine Towage Award 2010. The transcript of the conference proceedings is available on the
Review website (AM2014/235). Maritime Industry Australia Ltd and the Maritime Union of
Australia appeared before the Commission at the conference.
[2] The following items in the revised summary were discussed at the conference:
Items 1, 2 and 3: these are substantive issues and have been referred to the Full
Bench in matter AM2016/5 for determination.
Item 4: agreed, no action required.
Item 5: agreed, no action required.
[3] Item 6 of the revised summary was not discussed as this issue was resolved at the
mention held on 6 June 2016 – no change to the Exposure Draft is required in relation to this
issue.
Attachment 2—Report – Marine Towage Award 2010
REPORT
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/040816-am2014223andors.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/marine-towage-summary-revised.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/marine-towage-summary-revised.pdf
[2016] FWC 7768
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Next steps
[4] The Commission will publish a revised Exposure Draft following the determination of
the coverage matter (items 1, 2 and 3 of the revised summary) by the Full Bench in matter
AM2016/5. That matter was listed9 for hearing on 24 and 25 October 2016. All questions will
be removed from the revised Exposure draft and parties will be provided with a final
opportunity to comment.
PRESIDENT
9 Notice of listing – 24 and 25 October 2016
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/nol-24-251016-5.pdf
[2016] FWC 7768
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Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards
(AM2014/240)
PORT AUTHORITIES AWARD 2010
[MA000051]
Ports authorities
JUSTICE ROSS, PRESIDENT MELBOURNE, 7 NOVEMBER 2016
4 yearly review of modern awards – Port Authorities Award 2010.
[1] On 4 August 2016 a conference was held to discuss the revised summary of
submissions published on 24 June 2016 in relation to the review of the Port Authorities
Award 2010. The transcript of the conference proceedings is available on the Review website
(AM2014/240). The following parties appeared before the Commission at the conference:
Australian Maritime Officers’ Union;
Maritime Union of Australia; and
Ports Australia.
[2] There was one matter outstanding (item 5) for discussion at the conference and the
parties confirmed that they are content to rely on the written submissions already filed in
respect of this matter.
Next steps
[3] The Full Bench will determine the matter raised in respect of item 5 on the basis of the
submissions already filed without the need for an oral hearing. A revised Exposure Draft will
be published thereafter and parties will be provided with a final opportunity to comment.
PRESIDENT
Attachment 3—Report – Port Authorities Award 2010
REPORT
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/040816-am2014223andors.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/port-authorities-subs-summary-revised.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/port-authorities-subs-summary-revised.pdf
[2016] FWC 7768
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Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards
(AM2014/241)
PORTS, HARBOURS AND ENCLOSED WATER VESSELS AWARD 2010
[MA000052]
Ports authorities
JUSTICE ROSS, PRESIDENT MELBOURNE, 7 NOVEMBER 2016
4 yearly review of modern awards – Ports, Harbours and Enclosed Water Vessels Award
2010.
[1] On 4 August 2016 a conference was held to discuss the revised summary of
submissions (the revised summary) published on 24 June 2016 in relation to the review of the
Ports, Harbours and Enclosed Water Vessels Award 2010 (Ports Award). The transcript of
the conference proceedings is available on the Review website (AM2014/241). The following
parties appeared before the Commission at the conference:
Australian Maritime Officers’ Union;
Maritime Union of Australia;
Ports Australia;
The Australian Institute of Marine and Power Engineers; and
The Australian Workers’ Union (AWU).
[2] The following items in the revised summary were discussed at the conference:
Items 1–6: were either withdrawn or have been referred to other full benches.
Item 7, 9 and 23: directions will be issued in relation to the filing of further
material.
Items 8, 24 and 25: being dealt with by the Part-time and Casual Employment
Full Bench in AM2014/196 and AM2014/197.
Attachment 4—Report – Ports, Harbours and Enclosed
Water Vessels Award 2010
REPORT
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/am2014197-casual-employment
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/am2014196-part-time-employment
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/040816-am2014223andors.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/phewv-subs-summary-revised.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/phewv-subs-summary-revised.pdf
[2016] FWC 7768
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Item 10: agreed, breaks are unpaid. The Exposure draft will be updated to clarify
this.
Item 12: not agreed, will be addressed after the Full Bench has determined the
coverage issue in AM2016/5.
Item 13: not agreed, parties will be provided with a further opportunity to
comment on this issue after the revised Exposure Draft has been published.
Items 14 and 15: not opposed, The AWU’s proposals will be incorporated into
the revised Exposure Draft.
Item 16: agreed, clauses 10.1(e) and (f) will be moved to clause 10.2—Expense-
related allowances.
Item 17: agreed, clause 10.1(j) will be deleted.
Item 18: not opposed, The AWU’s proposal will be incorporated into the revised
Exposure Draft.
Items 19: not agreed, the revised Exposure Draft will include the current Ports
Award clause and parties will be provided with a further opportunity to comment
on this issue.
Item 20: not agreed, the Commission will publish a summary of the parties’
positions to date and parties will be provided with a further opportunity to file
submissions.
Item 22: agreed, the word ‘is’ will be inserted after the words ‘employee who’.
[3] The following items were not discussed at the conference, however were previously
discussed at the 6 June 2016 mention:
Item 11: has been referred to the Full Bench in matter AM2016/5 for
determination.
Item 21: it was agreed that the word ‘attendances’ will be replaced with the
words ‘eating utensils’ and parties will be provided with a further opportunity to
comment.
Next steps
[4] A revised Exposure Draft, further revised summary of submissions and summary of
the parties’ positions in respect of item 20 have been published with the issuing of this report.
[5] Draft directions setting out the process for dealing with the outstanding technical and
drafting matters are set out at Attachment 6. Any comments on the draft directions are to be
filed by no later than 4.00pm on Monday 14 November 2016. Final directions will be issued
thereafter.
PRESIDENT
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/phewv-item20-sub-summary.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/phewv-item20-sub-summary.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/phewv-subs-summary-further-revised.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-ports-revised.pdf
[2016] FWC 7768
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Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards
(AM2014/243)
SEAGOING INDUSTRY AWARD 2010
[MA000122]
Maritime industry
JUSTICE ROSS, PRESIDENT MELBOURNE, 7 NOVEMBER 2016
4 yearly review of modern awards – Seagoing Industry Award 2010.
[1] On 4 August 2016 a conference in relation to the review of the Seagoing Industry
Award 2010 (Seagoing Award) was held to discuss the revised summary of submissions (the
revised summary) published on 24 June 2016. The transcript of the conference proceedings is
available on the Review website (AM2014/243). The following parties appeared before the
Commission at the conference:
Australian Maritime Officers’ Union (AMOU);
Maritime Industry Australia Ltd (MIAL);
Maritime Union of Australia; and
The Australian Institute of Marine and Power Engineers
[2] The following items in the revised summary were discussed at the conference:
Items 1 and 2: withdrawn.
Item 3: not agreed, directions to be issued for the determination of this issue.
Items 4 and 17: MIAL agreed to seek further instructions and in doing so was
asked to consider decision [2013] FWCFB 8338. On 3 October 2016 MIAL filed
a submission10 and reiterated its position that the wording of clause 6 of the
Exposure Draft creates potential for confusion. MIAL submitted:
10 MIAL Submission - revised summary of submissions - items 4 and 17 3 October 2016.
Attachment 5—Report – Seagoing Industry Award 2010
REPORT
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014243-sub-mial-031015.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb8338.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/040816-am2014223andors.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/seagoing-subs-summary-revised.pdf
[2016] FWC 7768
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‘Clause 6 implies that any vessel granted a temporary license under the Coastal Trading
Act is then covered by the Schedule A (presently Part B) of the award. This is not the
case. …
MIAL considers that this potential confusion could be remedied by inserting a
reference to 1.15B of the Fair Work Regulations in clause 6.’11
With respect to MIAL’s consideration of decision [2013] FWCFB 8338, it submitted
as follows:
‘MIAL does not consider that the decision on Australian Maritime Offices Union v
CSL Australia Pty Ltd. [2013] FWCFB 8338 referenced by the Maritime Union of
Australia has application. That decision related to an appeal where it was found that
the Commissioner had erred in varying the award to resolve a perceived ambiguity in
the FW Regulations, simultaneously narrowing the definition of a temporary license.
MIAL’s position is related to confirming and referring to the existing definition in the
FW Regulations. MIAL is not seeking to change or even to restate the definition, but
merely to reference both the Coastal Trading Act and Regulations in section 6 of the
SIA so that it is clear that is where the definition of temporary licensed ships that
would be covered by the SIA is found.’12
Items 5–8: agreed or not opposed.
Items 7 and 23: agreed, legislative references to the Navigation Act 2012 (Cth)
will be updated.
Item 9: subclause 8.5(b) will be moved to below subclause 8.5(d) in the revised
Exposure Draft. The MUA was to provide a redraft of what was subclause 8.5(d)
and did so in its submission13 filed in the Commission on 28 September 2016.
The MUA proposed that clause 8.5 read as follows:
‘8.5 Minimum hours of rest
(a) An employer shall comply with the requirements of Marine Order 28 that states
that unless AMSA has granted an exemption under section 6 or emergency or drill or
other overriding operational conditions as defined in section 13 exist:
(1) The minimum hours of rest for a seafarer must be:
(a) 10 hours in any 24 hours; and
(b) 77 hours in any 7 days.
(2) The minimum hours of rest may be divided into 2 periods, of which 1 period
must be at least 6 hours.
(3) The interval between consecutive periods of rest must not exceed 14 hours.
11 Ibid at paras 6 and 8.
12 Ibid at paras 9–10.
13 MUA Submission - revised summary of submissions - item 9 28 September 2016.
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014243-sub-mua-280915.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb8338.htm
[2016] FWC 7768
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(b) Joining a vessel overseas
An employee required to travel overseas to join a vessel will be provided with
adequate rest before commencing duties.’
Item 10: withdrawn.
Item 11: has been referred to the Full Bench in matter AM2016/5 for
determination.
Item 12: withdrawn.
Item 13: agreed, the reference to Marine Orders–Part 3 will be amended to
Marine Orders 70–73.
Item 14: agreed, no amendment required.
Item 15: the revised ED will delete ‘trappings’ and insert ‘items of equipment or
dress such as epaulettes, lanyards and hats’.
Item 18: the matter will be referred to the Full Bench that dealt with the Alleged
NES Inconsistencies matter (AM2014/1) for determination. The matter will be
listed for mention and following the mention, directions will be issued for the
filing of further submissions.
Item 19: no change sought.
Item 20: agreed, Schedule B—Summary of hourly rates will be deleted.
Item 21: no amendment required.
Item 22: agreed, the term ‘repatriation’ will be deleted from the revised Exposure
Draft.
Item 23: agreed.
[3] Item 16 was not discussed at the conference however, it was discussed briefly at the
mention on 6 June 201614 at which time it was confirmed no amendment is required.
Next steps
[4] Item 18 will be referred to the Alleged NES Inconsistencies Full Bench (AM2014/1)
and the matter will be listed for mention. Following the mention, directions for the filing of
further submissions will be issued by that Full Bench.
[5] A revised Exposure Draft and further revised summary of submissions have been
published with the issuing of this report.
[6] Draft directions setting out the process for dealing with the outstanding technical and
drafting matters are set out at Attachment 6. Any comments on the draft directions are to be
filed by no later than 4.00pm on Monday 14 November 2016. Final directions will be issued
thereafter.
14 See Transcript – 6 June 2016 at PN 360–361.
https://www.fwc.gov.au/documents/Transcripts/20160606_AM2014220.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/seagoing-subs-summary-further-revised.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/exposure-draft-seagoing-revised.pdf
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/alleged-nes-inconsistencies
https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/4-yearly-review/alleged-nes-inconsistencies
[2016] FWC 7768
17
PRESIDENT
[2016] FWC 7768
18
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards—Award stage – sub-group 3C
(AM2014/223, AM2014/241, AM2014/243)
JUSTICE ROSS, PRESIDENT MELBOURNE, 14 NOVEMBER 2016
4 yearly review of modern awards - award stage - sub-group 3C - Maritime Awards.
Further to the conference on 4 August 2016, it is directed that:
1. On or before 4.00 pm on Monday 21 November 2016, interested parties are to file in
the Commission any comments they may have in relation to the accuracy of the
revised exposure drafts and further revised summaries of submissions published in
respect of the Dredging Industry Award 2010; Ports, Harbours and Enclosed Water
Vessels Award 2010; and Seagoing Industry Award 2010 on 31 October 2016. In
doing so, interested parties are to identify:
(i) which, if any, technical and drafting claims are being pursued;
(ii) which, if any, technical and drafting claims are withdrawn (if not
already so identified); and
(iii) whether a party contends that a clause in the revised Exposure Draft has
a different legal effect to the corresponding clause in the modern award.
2. Where an interested party asserts, pursuant to direction 1(iii), that a clause in the
revised Exposure Draft has a different legal effect to the corresponding modern award,
that party is to specify:
(i) the legal effect of the clause in the corresponding modern award;
(ii) the legal effect of the clause in the revised Exposure Draft; and
(iii) an explanation of how they differ.
3. On or before 4.00 pm on Monday 5 December 2016 interested parties are to file
written submissions and any evidence in support of the outstanding claims identified
in their submissions filed in accordance with direction 1.
Attachment 6—Draft directions
DRAFT DIRECTIONS
[2016] FWC 7768
19
4. On or before 4.00 pm on Monday 19 December 2016 interested parties are to file
written submissions and any evidence in reply.
5. The Full Bench will determine the matters on the basis of the material filed pursuant
to these directions without an oral hearing unless a hearing is requested by any party.
6. If a hearing in this matter is requested by any party, such request must be made in
writing by no later than 4.00 pm on Friday 22 December 2016.
7. All material should be sent to amod@fwc.gov.au.
8. Liberty to apply.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
mailto:amod@fwc.gov.au
