Construction, Forestry and Maritime Employees Union
[2023] FWC 3273
•6 DECEMBER 2023
[2023] FWC 3273 FAIR WORK COMMISSION
STATEMENT 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, 6 DECEMBER 2023
Section 160 of the Fair Work Act 2009 (Cth) – variation of modern award to correct error – summary of hourly rates of pay – casual employees – Ports, Harbours and Enclosed Water Vessels Award 2020 – provisional view – draft determination issued.
[1] An application has been made by the Construction, Forestry and Maritime Employees Union (CFMEU)[1] under s 160 of the Fair Work Act 2009 (Cth) (FW Act) to correct an error it has identified in Schedule A of the Ports, Harbours and Enclosed Water Vessels Award 2020 (the Award).
[2] Schedule A of the Award contains summaries of hourly rates of pay. Clause A.3 relates to casual employees and sets out the hourly rates of pay based on the ordinary and penalty rates for casual shiftworkers and casual non-shiftworkers set out in clauses 14, 18 and 19, respectively, of the Award.
[3] On 18 August 2020, a Full Bench issued a decision[2] (August 2020 decision) as part of the 4 yearly review of modern awards relating to overtime for casual employees. The Award was discussed at paragraphs [201]–[207] of the August 2020 decision and at paragraph [206] the Full Bench determined that the casual loading was payable on top of the overtime rate, calculated on a cumulative basis.
[4] On 30 October 2020, the Full Bench issued a decision[3] varying the Award to give effect to the August 2020 decision. Clause 18.2 of the Award, which sets out overtime rates on Monday to Friday and penalty rates on Saturday, Sunday and public holidays, was varied to provide for overtime and penalty rates for casual employees inclusive of the casual loading. The summary of rates in clause A.3.1, ordinary and penalty rates for casual non-shiftworkers, and clause A.3.2, ordinary and penalty rates for casual shiftworkers, were not varied at the same time as clause 18.2, to give effect to the August 2020 decision.
[5] A submission was received from the Australian Institute of Marine and Power Engineers (AIMPE) supporting the CFMEU’s application for the reasons expressed in the application.[4]
[6] Section 160 of the FW Act allows the Commission to vary a modern award to remove ambiguity or uncertainty or correct an error. The principles applicable to the interpretation and application of s 160 are well established. It is first necessary to determine whether there is ambiguity, uncertainty or error in an award. In order to establish that there is an error it is necessary to show that some sort of mistake occurred, in that a provision of the award was made in a form which did not reflect the tribunal’s intention.[5] Once established, further consideration can be given as to whether the discretion to vary the award should be exercised.[6]
[7] The CFMEU seeks to vary clause A.3 of the Award by deleting the current tables in clauses A.3.1 and A.3.2 and replacing them with the tables set out at paragraph 2.4 of their application on the basis that the rates in clause A.3 do not reflect the variations that were made in the body of the Award by the Full Bench in the Overtime for casuals matter, and that this is an obvious error.
[8] The CFMEU submit that the variation is necessary to achieve the modern awards objective in s.157(2)(b) and to achieve the minimum wages objective in s.284(2)(b) by ensuring that the rates published in the schedule reflect the rules for those rates prescribed by the clauses in the body of the award.
[9] A conference was held before me on 1 December 2023 to discuss the calculation of the rates provided by the CFMEU in their application. The CFMEU, the AIMPE and the Maritime Industry Australia appeared at the conference.
[10] It is clear that clauses A.3.1 and A.3.2 of the Award were not varied to give effect to the August 2020 decision. It is my provisional view that the applicant is correct in that there are errors in the relevant pay rates and that this constitutes an error for the purpose of s 160. However, the rates proposed by the CFMEU in their application appear to be calculated incorrectly. To correct the error for the purpose of s 160, it is my provisional view that clauses A.3.1 and A.3.2 of the Award be varied by amending the rates of pay in accordance with the rates set out in Appendix A of this statement.
[11] A draft determination varying the Award to give effect to my provisional view at [10] above will be issued with this statement. Interested parties may file any response to my provisional view by 4:00 pm (AEDT) on Wednesday, 20 December 2023. If no submissions are received in opposition to my provisional view, the award will be varied in accordance with the draft determination.
PRESIDENT
Appendix A
Proposed amendments – Ports, Harbours and Enclosed Water Vessels Award 2020
A.3.1 Casual employees other than shiftworkers—ordinary and penalty rates
| Ordinary hours | Saturday | Sunday | Public holiday | |
| % of ordinary hourly rate1 | ||||
| 125% |
|
|
| |
| $ | $ | $ | $ | |
| Master | 38.34 |
|
|
|
| Mate | 36.51 |
|
|
|
| Engineer | 36.51 |
|
|
|
| General Purpose Hand, Deckhand, Greaser, Passenger Attendant, Turnstile Attendant, Boating Attendant, Host, Fireman, Trimmer, Linesman, Cook, Sailor, Able Seaman, Leading Hand | 34.55 |
|
|
|
| Shipkeeper | 31.68 |
|
|
|
| Crane Driver (under 20 tonnes) | 32.24 |
|
|
|
| Crane Driver (over 20 tonnes) | 35.50 |
|
|
|
1 Rates in table are calculated based on the minimum hourly rate, see clauses A.1.1 and A.1.2.
A.3.2 Casual shiftworkers—ordinary and penalty rates
| Afternoon | Night | Permanent night | Saturday | Sunday | Public holiday | |
| % of ordinary hourly rate 1 | ||||||
| 140% | 140% | 155% |
|
|
| |
| $ | $ | $ | $ | $ | $ | |
| Master | 42.94 | 42.94 | 47.54 |
|
|
|
| Mate | 40.89 | 40.89 | 45.28 |
|
|
|
| Engineer | 40.89 | 40.89 | 45.28 |
|
|
|
| General Purpose Hand, Deckhand, Greaser, Passenger Attendant, Turnstile Attendant, Boating Attendant, Host, Fireman, Trimmer, Linesman, Cook, Sailor, Able Seaman, Leading Hand | 38.70 | 38.70 | 42.84 |
|
|
|
| Shipkeeper | 35.48 | 35.48 | 39.28 |
|
|
|
| Crane Driver (under 20 tonnes) | 36.11 | 36.11 | 39.97 |
|
|
|
| Crane Driver (over 20 tonnes) | 39.76 | 39.76 | 44.02 |
|
|
|
1 Rates in table are calculated based on the minimum hourly rate, see clauses A.1.1 and A.1.2.
[1] Form F46
[2] [2020] FWCFB 4350
[3] [2020] FWCFB 5636
[4] AIMPE correspondence, 6 November 2023.
[5] 4 yearly review of modern awards - Vehicle Manufacturing, Repair Services and Retail Award 2010 [2016] FWCFB 4418 at [73].
[6] Property Sales Association of Queensland, Union of Employees re Real Estate Industry Award 2010 [2012] FWA 10134 at [14].
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