Application by Australian Maritime Officers' Union, The [2013] FWC 279 (15 January 2013) [2013] FWC 279 FAIR WORK COMMISSION DECISION Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years Australian Maritime Officers' Union, The (AM2012/348) Maritime industry VICE PRESIDENT WATSON SYDNEY, 15 JANUARY 2013 Application to vary the Seagoing Industry Award 2010 - Two yearly review of awards-variation to reflect change in Marine orders - variation made - Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 , Sch. 5, Item 6. Introduction [1] This decision concerns an application by The Australian Maritime Officers’ Union (AMOU) to vary clause 17.5 - Avoidance of physical exhaustion of the Seagoing Industry Award 2010 1 (the Award). The proposed variation is considered as part of the two yearly review of all modern awards that the Fair Work Commission is required to conduct pursuant to Sch. 5, Item 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). Background [2] On 4 April 2012, the Australian Maritime Safety Authority replaced Marine Orders Part 28: Operations standards and procedures, Issue 3 (Marine Orders: Part 28, Issue 3) 2 with Marine Orders Part 28: Operations standards and procedures, Issue 4 (Marine Orders: Part 28, Issue 4). 3 The new orders commenced operation on 15 April 2012. [3] The AMOU submits that presently, the provisions of clause 17.5 reflect Marine Orders: Part 28, Issue 3 which deals with rest breaks and rest periods. The AMOU submits that clause 17.5 ought to be varied to make the Award consistent with the new Marine Orders: Part 28, issue 4 and remove any anomaly which may exist as a result of the repeal of Marine Orders Part 28, Issue 3 and its replacement with Marine Orders part 28, Issue 4. The variation [4] Clause 17.5 of the Award currently provides: “ 17.5 Avoidance of physical exhaustion (a) Employees assigned to watch-keeping duties (i) An employee who is assigned duty as officer in charge of a watch or as a rating forming part of a watch must be provided a minimum of 10 hours of rest in any 24 hour period. The hours of rest may be divided into no more than two periods, one of which must be at least six hours in length. (ii) The requirements for rest periods laid down in clause 17.5(a)(i) need not be maintained in the case of an emergency or drill or in other overriding operational conditions. (iii) Despite clause 17.5(a)(i), the minimum period of 10 hours may be reduced to not less than six consecutive hours provided that any such reduction must not extend beyond two days and not less than 70 hours of rest are provided each seven day period. (b) Other employees (i) An employee not covered by clause 17.5(a) must be provided a minimum of 10 hours of rest in any 24 hour period. The hours of rest may be divided into no more than two periods, one of which must be at least six hours in length. (ii) The requirements for rest periods laid down in clause 17.5(a) need not be maintained in the following circumstances: if the employee is required to carry out work necessary for the shifting, arrival or sailing of the ship and/or essential work which cannot be reasonably deferred; or in the case of an emergency or drill or in other overriding operational conditions. (iii) Despite clause 17.5(b)(i), the minimum period of 10 hours may be reduced to not less than six consecutive hours provided that any such reduction must not extend beyond two days and a compensatory rest period of not less than eight consecutive hours (exclusive of meal breaks) is provided to such employees as soon as reasonably practicable thereafter. (c) Joining a vessel overseas An employee required to travel overseas to join a vessel will be provided with adequate rest before commencing duties.” [5] In its application, The AMOU proposed the following variation to clause 17.5: “1. Clause 17.5, delete “Avoidance of physical exhaustion”; and Insert “Minimum hours of rest”. 2. Clause 17.5 (a), delete “(a) Employees assigned to watch-keeping duties”; and Insert ”(a) The minimum hours of rest for a seafarer must be:” 3. Clause 17.5 (a)(i) delete “(i) An employee who is assigned duty as officer in charge of a watch or as a rating forming part of a watch must be provided a minimum 10 hours of rest in any 24 hour period. The hours of rest may be divided into no more than 2 period, one of which must be at least six hours in length”; and Insert “(i) 10 hours in any 24 hours and 77 hours in any 7 days. The minimum hours of rest may be divided into 2 periods, of which 1 period must be at least 6 hours. The interval between consecutive periods of rest must not exceed 14 hours”. 4. Delete clause 17.5(a)(iii), “Despite clause 17.5(a)(i), the minimum period of 10 hours may be reduced to not less than six consecutive hours provided that any such reduction must not extend beyond two days and not less than 70 hours of rest are provided each seven day period”; and Insert “(iii) seafarer means a seaman as defined in subsection 6(1) of the Navigation Act or the master of a ship”. 5. Delete 17.5(b)(i), (ii) and (iii); and Renumber 15.5(c) to 17.5(b)”” [6] At the hearing of this matter on 5 December 2012, The Maritime Union of Australia, indicated that it supported the variation sought. The AMOU indicated that The Australian Institute of Marine and Power Engineers also supported the variation. In correspondence dated 3 December 2012, Shipping Australia Limited indicated that it did not oppose the variation. [7] The Australian Ship Owners Association (ASA) indicated that they were not opposed to the variation in principle in that they agree that there should be consistency between the provisions of Marine Orders: Part 28, Issue 4 and the Award. However the ASA submits that the variation does not make reference to Clause 15 of Marine Orders: Part 28, Issue 4 which deals with Exceptions from minimum hours of rest. The ASA indicated that if words were added to the variation to alleviate this concern, they would support it. [8] CSL Australia Pty Ltd, VShips Australia Pty Ltd and the National Bulk Commodities Group indicated that they supported the variation to the extent that a reference to Clause 15 of Marine Orders: Part 28, Issue 4 is included in the variation to Clause 15.7. [9] At the hearing I indicated that the AMOU’s application is consistent with the principles for reviewing the Award under schedule 5 item 6 of the Transitional Act because it brings into line the Award provisions with changes to the Marine Orders since the Award was made. However I indicated that it would be preferable for clause 17.5 to be entirely consistent with Marine Orders: Part 28, Issue 4. I invited the AMOU to consult with the other parties that raised concerns over the absence of a reference to clause 15 of Marine Orders: Part 28, issue 4 in the variation and then provide an amended draft variation to reflect the agreed position. [10] On 9 January 2013, after consultation with interested parties, the AMOU filed a further amended variation that has been approved by the ASA, CSL Australia Pty Ltd and VShips Australia Pty Ltd. I am satisfied that the variations are appropriate and make a determination that reflects that position in conjunction with issuing this decision (PR533148). VICE PRESIDENT WATSON Appearances M. Gibian of counsel for The Australian Maritime Officers’ Union N. Keats for The Maritime Union of Australia S. Cerche for the Australian Shipowners Association S. Zeitz for CSL Australia Pty Ltd and V Ships Australia Pty Ltd K. Tredwell for National Bulk Commodities Group Hearing Details 2012. Sydney. December 5. 1 MA000122 . 2 Exhibit G2. 3 Exhibit G3. Printed by authority of the Commonwealth Government Printer <Price code C, MA000122 PR533148>