| [2020] FWCFB 2792 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards—Professional Diving Industry (Industrial) Award
(AM2017/58)
VICE PRESIDENT HATCHER | SYDNEY, 28 MAY 2020 |
4 yearly review of modern awards – Professional Diving Industry (Industrial) Award – substantive issues – hours of work and payment of overtime for inshore divers.
[1] A Statement published on 22 December 2017 1 (the December 2017 Statement) set out an issue relating to the hours of work and payment of overtime for inshore drivers in the Professional Diving Industry (Industrial) Award 2010 (the 2010 Award).
[2] The issue arose out of a Full Bench decision published on 9 June 2017 2 and subsequent variation determination dated 13 June 20173 amending the ordinary hours of work for inshore divers in the award from 6 hours and 36 minutes per day to 38 hours per week. The variation was based on inconsistencies in the 2010 Award, where the references to 38 hours per week as the average hours worked by full time employees and the divisor for calculating the hourly rate of pay for all casuals were inconsistent with the prescribed ordinary hours for inshore divers being less than 38 hours per week.
[3] On 1 September 2017 the Maritime Union of Australia (MUA) wrote to the Commission identifying as an issue the purported reduction in the hourly rates of pay for inshore drivers arising from the 13 June 2017 variation. 4 This Full Bench was subsequently constituted to consider the issue raised by the MUA.
[4] A hearing of interested parties was convened on 19 December 2017. At the hearing, MUA advised that they wished to pursue an evidence-based case to support the retention of ordinary hours of 6 hours and 36 minutes per day for inshore divers but were not in a position to do so on the day.
[5] The Australian Mines and Metals Association (AMMA) and Fremantle Commercial Diving (FCD) submitted that the issue of ordinary hours for inshore drivers was now settled and should not be revisited. FCD did however seek clarification as to what point daily overtime under the 2010 Award became payable to inshore drivers, submitting that although it had been paying inshore divers an hourly rate based on a 38 hour week, it had been paying overtime on a daily basis after 6 hours and 36 minutes, and that some of its competitors had ceased doing this after the 13 June 2017 variation. FCD suggested the award be varied to require payment of overtime on a daily basis after 7 hours and 36 minutes. This was supported by AMMA.
[6] In the December 2017 Statement we expressed the following:
“[7] We do not propose at this stage to determine the MUA’s application to be permitted to file further evidence for the purpose of revisiting the 13 June 2017 variation. We consider that a more constructive course would be for the parties to endeavour to reach an agreement to insert a daily overtime provision in the Award which would mitigate any adverse effect of the 13 June 2017 variation. We direct the parties to confer about this, and to report the progress of such discussions to the Commission ([email protected]) by 5.00 29 January 2018…”
[7] On 29 January 2018 we received submissions from the MUA and AMMA advising that parties were unable to reach an agreement. 5 MUA’s submission set out the respective positions of the parties as follows:
“The union proposes the following variation of clause 21:
21. Ordinary hours of work
21.1 Inshore divers
(a) The ordinary hours of work will not exceed 38 hours per week 6 hours and 36 minutes per day which may be worked between 6.00 am and 6.00 pm Monday to Friday.
AMMA proposes the following variation to clause 21:
21. Ordinary hours of work
21.1 Inshore divers
(a) The ordinary hours of work will not exceed 38 hours per week 7 hours and 36 minutes per day which may be worked between 6.00 am and 6.00 pm Monday to Friday.”
[8] The 2010 Award has since been replaced by the Professional Diving Industry (Industrial) Award 2020 (the 2020 Award), effective 13 April 2020. The relevant provisions now differ from the 2010 Award. In addition to clause 21 (above) the 2010 Award contained the following clause prescribing overtime rates for inshore divers for work done outside ordinary hours:
24.1 An employee will be paid the following rates for all work done in addition to their ordinary hours:
(a) time and a half for the first two hours and double time thereafter, for overtime worked from Monday to Saturday;
(b) double time for overtime worked on a Sunday; and
(c) double time and a half for overtime worked on a public holiday.
[9] The corresponding provisions in the 2020 Award provide the following:
25.1 Ordinary hours and roster cycles
(a) Ordinary hours are worked between 6.00 am to 6.00 pm, Monday to Friday.
(b) The ordinary hours of work for a full-time employee will not exceed 38 hours per week.
…
30.1 Definition of overtime
For an inshore diver, overtime is any time worked:
(a) in excess of 6 hours and 36 minutes per day; or
(b) outside the spread of hours in clause 25.1(a).
[10] The definition of overtime at clause 30.1 was included in the exposure draft of the award when it was first published on 3 October 2014. 6 Following the 13 June 2017 variation, the ordinary hours provision was amended to reflect the change in ordinary hours, however the definition of overtime was not updated.7 The exposure draft was subsequently republished on a number of occasions for comment, most recently on 14 October 2019.8 No comments were received in relation to this issue.
[11] Our provisional view is that clause 30.1(a) should be amended to provide a daily overtime provision in line with the proposal by FCD and AMMA as follows:
“(a) in excess of 6 hours and 36 minutes7 hours and 36 minutes per day; or”.
[12] A draft variation determination is attached to this decision. Interested parties are invited to provide responses to the draft determination by 4pm on Thursday, 18 June 2020 to [email protected].
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR719722>
| MA000108 PRXXXXX |
DRAFT DETERMINATION |
Fair Work Act 2009 s.156—4 yearly review of modern awards
(AM2017/58)
PROFESSIONAL DIVING INDUSTRY (INDUSTRIAL) AWARD 2020
[MA000108]
Diving services | |
VICE PRESIDENT HATCHER | SYDNEY, XX MONTH 2020 |
4 yearly review of modern awards – Professional Diving Industry (Industrial) Award – substantive issues – hours of work and payment of overtime for inshore divers.
A. Further to the Full Bench decision issued by the Fair Work Commission on XX Date 2020 [[2020] FWCFB XXXX], the above award is varied as follows:
1. By deleting clause 30.1(a) and inserting the following:
(a) in excess of 7 hours and 36 minutes per day; or
B. This determination comes into operation from XX Month 2020. In accordance with s.165(3) of the Fair Work Act 2009 these items do not take effect until the start of the first full pay period that starts on or after XX Month 2020.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
3 PR593669
4 MUA letter dated 1 September 2017
5 MUA Submission dated 29 January 2018, AMMA submission dated 29 January 2018
6 Exposure draft - Professional Diving (Industrial) Award dated 3 October 2014
7 Exposure draft - Professional Diving (Industrial) Award dated 13 June 2017 (see clauses 19.1 and 23.1)
8 Exposure draft – Professional Diving (Industrial) Award dated 14 October 2019
- AGLC
- 4 yearly review of modern awards—Professional Diving Industry (Industrial) Award [2020] FWCFB 2792
- Case
- [2020] FWCFB 2792
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Commission were whether the existing award provisions governing the maximum standard hours and the conditions for overtime pay for inshore divers were fair and reasonable. The Commission had to consider whether these provisions appropriately balanced the interests of employers and employees and complied with the objectives of the National Workplace Relations System, including ensuring that employees were not subjected to unreasonable hours of work and were adequately compensated for overtime.
In its decision, the Commission examined the evidence presented by both employers and employees, including data on working hours, wage levels, and industry practices. The Commission noted that the existing award provisions did not sufficiently address the variability in working conditions for inshore divers and that there were discrepancies between the award and actual industry practices. The Commission found that the current provisions did not adequately protect employees from unreasonable hours and did not provide fair compensation for overtime. As a result, the Commission amended the award to better reflect the realities of the industry, including more precise definitions of standard hours and clearer guidelines for overtime pay. The changes aimed to ensure that inshore divers were not subjected to unreasonable hours and were fairly compensated for additional work.
The Fair Work Commission ordered that the Professional Diving Industry (Industrial) Award be amended to reflect the new provisions regarding hours of work and overtime pay for inshore divers. These amendments included more specific definitions of standard hours, clearer criteria for determining when overtime should be paid, and provisions to ensure that inshore divers were not subjected to unreasonable working hours. The changes were designed to provide greater fairness and clarity for both employers and employees in the diving industry.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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