| [2017] FWCFB 5749 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
Diving services | |
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 3 NOVEMBER 2017 |
4 yearly review of modern awards – award stage – technical and drafting issues – Professional Diving Industry (Industrial) Award 2010 – inshore divers – hours of work.
[1] This Statement concerns correspondence from the Maritime Union of Australia (the MUA) about an issue that has arisen in relation to the Professional Diving Industry (Industrial) Award 2010 (Industrial Diving Award).
[2] In the Award Stage of the Review, the Industrial Diving Award was reviewed in Group 1. An initial conference for Group 1 awards was held on 13 May 2014 and an Exposure Draft for the Industrial Diving Award was published on 3 October 2014. Written submissions were received from interested parties concerning the Exposure Draft and a hearing held on 18 November 2014. 1
[3] The Commission convened a conference to resolve the outstanding issues arising from the Industrial Diving Exposure Draft on 13 May 2015. Representatives from the MUA, the Australian Workers' Union (AWU) and the Australian Mines and Metals Association (AMMA) attended the conference. A Report 2 was issued on 2 July 2015 dealing with the outcome of the conference. A number of the issues were agreed between the parties and two issues remained outstanding issues: the hours of work for inshore divers and the divisor for the casual rates of pay. After the conference, correspondence was received from a business that trades as Fremantle Commercial Diving (FCD)3 noting that the FCD had only recently become aware of the Commission’s Review of modern awards and making a submission in relation to the calculation of casual rates and the ordinary hours of casual employees for inshore diving.
[4] On 23 October 2015 a Full Bench issued a decision 4 (October 2015 decision) dealing with a number of drafting and technical issues in relation to the Industrial Diving Award. The matters that were agreed between the parties were incorporated in the revised Exposure Draft. The revised Exposure Draft was republished on 2 November 2015.
[5] The October 2015 decision provided an overview of the issue in relation to the hours of work provisions in the award noting that it contains terms and conditions for both offshore and inshore divers. Clause 10 of the award stipulates that full-time employees, both inshore and offshore, are engaged to work an average of 38 ordinary hours per week and casual employees are to be paid 1/38th of the relevant minimum wage plus a loading of 25%. However, clause 21 of the award provided that inshore divers' ordinary hours of work will not exceed 6 hours and 36 minutes per day, worked between 6:00 am and 6:00 pm Monday to Friday (i.e. 33 hours per week).
[6] In the October 2015 decision the Full Bench made the observation that the distinction between the hours of work for inshore and offshore divers is unusual and warrants further examination as to why the ordinary hours for inshore divers should not be the NES standard of 38 per week, particularly given the comparison with offshore divers. A further conference was to be held before Deputy President Bull to provide other parties an opportunity to be heard on this issue. 5
[7] On 26 November 2015, a notice of listing was published on the Commission website informing interested parties that a conference would be convened in Sydney with a video link to Perth on 4 January 2016. Award subscribers were notified on the 27 November 2015 and a letter was sent by email to all named respondents to the pre-reform award, the Professional Divers’ – Maritime Union of Australia Award 2002 6 (Professional Divers' Award) on 1 December 2015.
[8] Representatives from the MUA, the AWU, AMMA and FCD attended the conference and a number of parties made further submissions after the conference.
[9] On 9 June 2017 7 the Group 1 Award stage Full Bench issued a further decision (June 2017 decision) addressing a number of outstanding technical and drafting issues, including the hours of work for inshore divers. In respect of that issue the Full Bench concluded:
‘It is understood that divers work across the two sectors, and accordingly it is difficult to reconcile the distinction in hours for offshore divers and inshore divers. Further, we are not persuaded of the merits of retaining the current prescription of a 33 hour week for inshore divers. In our view the inconsistency between current award provisions should be resolved by prescribing a 38 hour week for inshore divers, which may be worked between 6.00am and 6.00pm Monday to Friday.’ 8
[10] On 13 June 2017 a determination was issued 9 varying clause 21.1 of the Industrial Diving Award as follows:
21. Ordinary hours of work
21.1 Inshore divers
(a) The ordinary hours of work will not exceed 6 hours and 36 minutes per day 38 hours per week which may be worked between 6.00 am and 6.00 pm Monday to Friday.
(b) Work undertaken prior to the spread of hours provided by clause 21.1(a) for which overtime rates are payable will be deemed for the purposes of this clause to be part of the ordinary hours of work.
(c) The spread of hours provided by clause 21.1(a) may be altered by up to one hour by mutual agreement between the employer and employees.
(d) Where employees are not employed on diving operations as such during the full 6 hours and 36 minutes in any one day their ordinary hours, the employer will have the right to use their services on other work for any time remaining.
[11] The award and the Exposure Draft were updated and published on the Commission website. On 23 June 2017, the Commission wrote to the parties who participated in the Review proceedings advising them of the June 2017 decision, the determination updating the award and the increases in the wage rates resulting from the Annual Wage Review 2016–2017 Decision 10.
[12] On 1 September 2017 11 the MUA corresponded with the Commission regarding the June 2017 decision. The correspondence states that the MUA ‘has been inundated with messages on social media from professional divers who performed inshore in the industry work as casual employees’ expressing concern that the casual hourly rate had been reduced from $35.64 to $31.98. The MUA sought an opportunity to further discuss the effects of the decision with the Commission.
[13] Section 156 of the Act imposes an obligation on the Commission to review all modern awards. The Review is conducted on the Commission’s own motion and is not dependent upon an application by an interested party. The Review is plainly distinguishable from inter partes proceedings. The present proceedings form part of the Review.
[14] Whilst a number of employer parties made submissions supporting the variation to the hours of work clause in the proceedings and the MUA have participated in the review opposing that variation, this is not an inter partes proceeding, it is a review and the review of the Industrial Diving Award has not been completed. In that context a Full Bench (a subset of the Group 1 Award stage Full Bench) will be constituted to consider the issues raised by the MUA.
PRESIDENT
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3 Correspondence dated 21 August 2015.
5 Ibid at [226].
7 [2017] FWCFB 3177 at [80]–[114].
8 [2017] FWCFB 3177 at [113].
11 MUA correspondence, 1 September 2017.