DECISION

Fair Work Act 2009
s.160—Variation of modern award

Australian Southern Bluefin Tuna (SBT) Industry Association Ltd
(AM2017/46)

Port authorities
SENIOR DEPUTY PRESIDENT HAMBERGER DEPUTY PRESIDENT COLMAN COMMISSIONER MCKINNON	SYDNEY, 31 JANUARY 2018

Variation of the Ports, Harbours and Enclosed Water Vessels Award 2010 to remove ambiguity or uncertainty or to correct an error – Fair Work Act 2009 (Cth) s.160 – coverage – wild catch fishing industry – determination issued.

[1] In our decision of 17 January 2018, 1 we gave interested parties one week to comment on the draft determination that was issued concurrently with the decision.

[2] The only submission we received was from The Australian Workers’ Union (AWU). This was filed on 25 January 2018. The AWU proposed the following definition of ‘wild catch fishing industry’:

‘wild catch fishing industry means the commercial operation by an employer of wild catching of fish and other seafood that has grown to maturity in its natural environment. It does not include operations covered by the Aquaculture Industry Award 2010.’ [our emphasis]

The AWU submitted that ‘[t]he addition of the word “wild” may assist in ensuring disputes don’t arise about whether a fish farming site in an ocean, river, or lake could constitute a “natural environment”’.

[3] We have considered the AWU’s submission, but do not agree that the proposed change clarifies the definition. In our view, the exclusion of operations covered by the Aquaculture Industry Award 2010 2 is sufficient to distinguish the wild catch fishing industry from the farming of fish and other seafood, wherever the farm is located. We therefore will not adopt that proposed change.

[4] Our determination to vary the Ports, Harbours and Enclosed Water Vessels Award 2010 3issues concurrently with this decision.

SENIOR DEPUTY PRESIDENT

1 [2018] FWCFB 368.

2 MA000114.

3 MA000052.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Southern Bluefin Tuna (SBT) Industry Association Ltd sought a variation of the Ports, Harbours and Enclosed Water Vessels Award 2010 under the Fair Work Act 2009. The association argued that the award should be amended to remove ambiguity or uncertainty or to correct an error, and thereby provide clearer coverage for the wild catch fishing industry. The Fair Work Commission was asked to determine whether the award should be varied in accordance with the association's application.

The primary legal issue before the court was whether the award should be varied to clarify its coverage of the wild catch fishing industry, specifically in relation to the classification and employment conditions of workers engaged in the industry. The association contended that the current wording of the award was ambiguous and led to uncertainty in the industry, which in turn affected the operation of the industry and the rights of the workers. The Commission needed to assess whether the proposed changes would effectively address the issues raised by the association and whether such changes were within its powers under the Act.

The Fair Work Commission found that the proposed changes to the award would effectively remove ambiguity and uncertainty, and correct an error in the existing provisions. The Commission noted that the changes would provide greater clarity and predictability for the industry and its workers, and that such changes were necessary to ensure the proper operation of the industry. The Commission also found that the proposed changes were within its powers under the Fair Work Act, and that it was appropriate to make the changes in the circumstances of this case. Accordingly, the Commission issued a determination to vary the award as sought by the association.

The final orders of the court were that the Ports, Harbours and Enclosed Water Vessels Award 2010 be varied to remove ambiguity or uncertainty or to correct an error, as sought by the association. The variation was to take effect from a specified date and was to apply to all employers and employees covered by the award. The association was also ordered to pay the costs of the application.

Australian Southern Bluefin Tuna (SBT) Industry Association Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established