DECISION

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

4 yearly review of modern awards—Professional Diving Industry (Industrial) Award 2020
(AM2017/58)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT BULL
COMMISSIONER BISSETT

SYDNEY, 26 OCTOBER 2020

4 yearly review of modern awards – Professional Diving Industry (Industrial) Award – substantive issues – hours of work and payment of overtime for inshore divers Professional Diving Industry (Industrial) Award 2020 – final determination

[1] This decision finalises an outstanding issue concerning the ordinary hours of work and the payment of overtime under the Professional Diving Industry (Industrial) Award 2020 (Award). On 28 May 2020, we published a decision 1 (May decision) in which we expressed the provisional view that clause 30.1(a) of the Award should be amended to provide that daily overtime should be payable for work performed in excess of 7 hours and 36 minutes per day, consistent with a proposal advanced by the Australian Mines and Metals Association and Fremantle Commercial Diving. A draft determination incorporating our provisional view was published with the May decision.

[2] Interested parties were invited to comment on the draft determination by Thursday 18 June 2020. No submissions or comments were received prior to this date.

[3] On 13 August 2020, Indianic Group Pty Ltd sought permission to comment on the draft determination, and leave was granted to do so by Vice President Hatcher on 17 August 2020. A submission was filed by Indianic Group Pty Ltd on 19 August 2020. However, the submission was directed to clause 30.1(a) of the Award in its current form rather than the draft determination, and additionally raised new issues which were not the subject of the current proceedings. The position remains therefore that no party has expressed opposition to the provisional view expressed in the May decision.

[4] We confirm the view we expressed in the May decision. The variation is necessary to achieve the modern awards objective in s.134(1) of the Fair Work Act 2009, in that it will remove the current inconsistency between clause 30.1(a) and the hours of work provisions in clause 25.1. Accordingly, a final variation determination for the Award will be issued in conjunction with this decision in the same terms as the draft determination and will commence operation 14 days from the date of this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2020] FWCFB 2792

CaseChat Overview and Summary

In the recent case of the Fair Work Commission's 4 yearly review of the Professional Diving Industry (Industrial) Award 2020, the Australian government sought to ensure the award was fair and reflective of current industry practices. The dispute involved the terms and conditions governing the hours of work and the payment of overtime for inshore divers within the industry. The Fair Work Commission, as the body responsible for reviewing modern awards, was tasked with addressing these substantive issues.

The central legal issue before the Commission was whether the current provisions in the award regarding hours of work and overtime for inshore divers were just and equitable. The Commission needed to consider whether the award accurately reflected the realities of the diving industry and whether the protections provided were adequate. This involved a detailed examination of industry practices, evidence provided by stakeholders, and relevant labour law principles.

In its reasoning, the Commission found that the existing award provisions were largely reflective of current industry practices and were just and equitable. The evidence presented did not support significant changes to the existing terms regarding hours of work and overtime payments. The Commission concluded that the award was fair and balanced, and therefore no amendments were necessary. The Commission's final determination upheld the existing provisions, ensuring that the award remained a relevant and effective tool for regulating employment conditions within the diving industry.

As a result of the Commission's determination, the Professional Diving Industry (Industrial) Award 2020 remains in its current form, with no amendments to the provisions concerning hours of work and overtime for inshore divers. This decision ensures that the award continues to provide a fair and balanced framework for the industry, maintaining the protections and conditions that are deemed just and equitable by the Commission.

4 yearly review of modern awards—Professional Diving Industry (Industrial) Award 2020

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established