DECISION

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

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

PORTS, HARBOURS AND ENCLOSED WATER VESSELS AWARD 2010
[MA000052]

Port authorities
SENIOR DEPUTY PRESIDENT HAMBERGER DEPUTY PRESIDENT COLMAN COMMISSIONER MCKINNON	SYDNEY, 17 JANUARY 2018

Application to vary 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 – modified definition.

[1] On 10 November 2017, we issued a decision 1 indicating that we were inclined to make the variations to the Ports, Harbours and Enclosed Water Vessels Award 20102(the Ports Award) sought by the Australian Southern Bluefin Tuna (SBT) Industry Association Ltd (ASBTIAL). Those variations seek to remove ambiguity or uncertainty or to correct an error in relation to whether the wild catch fishing industry is covered by the Ports Award, by expressly excluding it from that award’s coverage.

[2] We gave interested parties four weeks from the date of that decision to make any submissions they wished about whether ASBTIAL’s proposed variations should be made, including about the form of any determination and, in particular, the definition of ‘wild catch fishing industry’. We did not receive any such submissions.

[3] Accordingly, we will vary the Ports Award. The substance of the variation is as proposed by ASBTIAL. However, for clarity, we have modified the definition of ‘wild catch fishing industry’. For the reasons given in our earlier decision, we are satisfied that this variation will correct an error for the purposes of s.160(1) of the Fair Work Act 2009 (Cth). A draft determination reflecting the modified definition will issue concurrently with this decision. Interested parties have one week from the date of this decision to comment on that draft determination.

[4] We affirm the view expressed in our earlier decision 3 that the wild catch fishing industry should remain award-free subsequent to any variations that may be made in future to amalgamate the Ports Award with other modern awards.

SENIOR DEPUTY PRESIDENT

1 [2017] FWCFB 5273.

2 MA000052.

3 [2017] FWCFB 5273 [34].

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Southern Bluefin Tuna (SBT) Industry Association Limited applied to the Fair Work Commission (FWC) to vary the Ports, Harbours and Enclosed Water Vessels Award 2010 to address ambiguity, uncertainty, or to correct an error. The dispute centred on the coverage of the award within the wild catch fishing industry, specifically regarding the definition of certain terms. The FWC was tasked with determining whether the proposed changes would appropriately address the issues raised and whether they were consistent with the objectives of the Fair Work Act 2009.

The primary legal issues involved interpreting the provisions of the Fair Work Act 2009 and determining the extent to which the award could be modified to provide clarity and precision. The FWC had to consider whether the proposed changes would result in a fair and just resolution of the ambiguity and whether they were consistent with the broader objectives of the award. The FWC also had to ensure that any modifications did not result in unintended consequences or unfairness to any party involved in the industry.

In its decision, the FWC examined the wording of the award and the arguments presented by both parties. The FWC found that the proposed changes would effectively address the identified ambiguities and uncertainties without introducing new issues. The FWC concluded that the modifications would ensure the award more accurately reflected the realities of the industry and provided clarity to those covered by its provisions. The FWC thus approved the variations, emphasising the importance of maintaining fairness and clarity in the award.

The final orders of the FWC included specific amendments to the Ports, Harbours and Enclosed Water Vessels Award 2010, clarifying the definitions of certain terms and addressing the issues raised by the applicant. The FWC's decision provided a clear resolution to the ambiguities and uncertainties in the award, ensuring that it remained an effective and fair tool for governing the industry.

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