Construction, Forestry and Maritime Employees Union Summary

[2023] FWC 3445

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.160—Application to vary a modern award to remove ambiguity or uncertainty or correct error

Construction, Forestry and Maritime Employees Union

(AM2023/26)

PORTS, HARBOURS AND ENCLOSED WATER VESSELS AWARD 2020

[MA000052]

Port authorities
JUSTICE HATCHER, PRESIDENT	SYDNEY, 22 DECEMBER 2023

Application to vary clause A.3 in the Ports, Harbour and Enclosed Water Vessels Award 2020 relating to penalty rates for casual employees.

In my statement[1] of 6 December 2023 (the Statement), I expressed the provisional view that clauses A.3.1 and A.3.2 of the Ports, Harbours and Enclosed Water Vessels Award 2020 (the Award) should be varied in the terms set out in Appendix A of that Statement because the discrepant pay rates constituted an error for the purpose of s 160. Interested parties were invited to respond to my provisional view by 20 December 2023.

No submissions were received. Accordingly, I confirm my provisional view at paragraph [10] of the Statement. I consider the variation necessary pursuant to s 160 of the Fair Work Act 2009 (Cth) to remove the identified error.

A determination varying clauses A.3.1 and A.3.2 of the Award will be issued with this decision. The determination will operate from 8 January 2024.

PRESIDENT

[1] [2023] FWC 3273

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry and Maritime Employees Union applied to the Fair Work Commission to vary the Ports, Harbours and Enclosed Water Vessels Award 2020, specifically clause A.3, which relates to penalty rates for casual employees. The application was made under section 160 of the Fair Work Act 2009, which allows the Commission to vary a modern award to remove ambiguity or uncertainty or correct an error. The Commission was required to consider whether the identified discrepancies in the award constituted an error warranting variation. The Commission needed to determine if the variation was necessary to correct the error and what form the variation should take.

In the Statement issued on 6 December 2023, Justice Hatcher, as President of the Commission, expressed a provisional view that clauses A.3.1 and A.3.2 of the Award should be varied to correct the error. No submissions were received in response to the Statement. The Commission confirmed the provisional view that the variation was necessary to correct the identified error. The variation would remove the discrepancies in the penalty rates for casual employees, thereby ensuring clarity and consistency in the award. The Commission decided that the variation was necessary and appropriate under section 160 of the Fair Work Act 2009.

The Fair Work Commission confirmed the variation of clauses A.3.1 and A.3.2 of the Ports, Harbours and Enclosed Water Vessels Award 2020. The variation was to take effect from 8 January 2024. The Commission issued a determination to this effect, which will be published alongside the decision. The variation aims to remove the identified error in the award and ensure that the penalty rates for casual employees are accurately and consistently applied. This decision reinforces the Commission's role in maintaining fair and accurate modern awards.

Construction, Forestry and Maritime Employees Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established