DECISION

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

Seagoing Industry Award 2010
(AM2014/243)

4 yearly review – alleged NES inconsistencies – Seagoing Industry Award 2010 – vessels granted a temporary licence – maximum weekly hours – s 62(1).

[1] On 12 January 2018, a differently constituted Full Bench issued a decision 1 (January 2018 decision) in which it determined that clause 27 of the Seagoing Industry Award 2010 was inconsistent with s 62(1) of the Fair Work Act 2009 because, in establishing that the ordinary hours of work were eight hours per day Monday to Friday, it required employees to whom the clause applied to work a mandatory 40 ordinary hours per week. This was in excess of the NES standard of 38 hours per week provided for in s 62(1). The Full Bench provisionally determined that, to rectify this, ordinary daily hours should be reduced to 7.6, and there should be a corresponding reduction of five percent to the weekly rates of remuneration for the relevant employees prescribed in clause 25 because they had been established and calculated on the basis of a 40-hour week. The Full Bench published a draft determination in conjunction with its decision that would give effect to its provisional conclusion, and invited parties to file any further submission in response within 28 days.

[2] Only two submissions were subsequently received. First, the Maritime Industry Australia Limited (MIAL) submitted that a reduction to 7.6 ordinary hours per day would have the potential to cause unnecessary confusion due to the requirement to calculate 0.4 of one hour at the overtime rate for each day worked Monday to Friday where eight (or more) hours are worked. It proposed instead that the current clauses 27.1 and 27.2 should be varied as follows for ease of calculation (with the variation underlined):

27.1 The ordinary hours of work will be eight hours per day from Monday to Friday. Subject to 27.2, hours worked in excess of 38 from Monday to Friday inclusive in any week will be paid for as overtime.

27.2 All hours worked in excess of eight hours per day from Monday to Friday will be paid as overtime.

[3] Second, the Maritime Union of Australia (MUA), as it then was, sent an email in which it simply stated that it supported the proposed amendments to clause 27 but opposed the reductions in the weekly rates of remuneration in clause 25.

[4] These submissions were not considered, and the matter not finalised, by the previously constituted Full Bench. Accordingly it falls to the currently constituted Full Bench to finalise the matter.

[5] We do not accept the MIAL submission. Clause 27 is based upon fixed and uniform daily ordinary hours Monday to Friday. We do not see the need to vary the clause to make it consistent with s 62(1) as the basis to change the structure of the clause. If any party considers that the clause should be varied to provide for greater flexibility in the arrangement of hours, it should do so by separate application. We do not consider that the alternative variation proposed by MIAL has any discernible advantage of clarity or simplicity over that contained in the draft determination.

[6] The MUA’s opposition to the reduction in weekly remuneration in clause 25 is noted. However it has not advanced any submission to contradict the analysis contained in the January 2018 decision which demonstrated that the current rates were calculated on the basis of a 40-hour week. The reduction in rates concomitant upon a reduction in weekly ordinary hours of work cannot therefore be avoided.

[7] The Seagoing Industry Award will therefore be varied in the terms proposed in the draft determination which accompanied the January 2018 decision, subject to the necessary updating of the rates in clause 25. The variation will operate from 1 May 2020. The final variation determination will be published in conjunction with this decision.

VICE PRESIDENT

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 1   [2018] FWCFB 129