STEVEDORING INDUSTRY AWARD 2010 - [2015] FWCFB 1729

[2015] FWCFB 1729

The attached document replaces the document previously issued with the above code on 14 May 2015.

The document has been amended to correct the header from page 23 of the decision onwards.

Associate to Vice President Watson

Dated 21 May 2015

[2015] FWCFB 1729

FAIR WORK COMMISSION

DECISION

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

STEVEDORING INDUSTRY AWARD 2010
(AM2014/90)

Stevedoring industry
VICE PRESIDENT WATSON DEPUTY PRESIDENT KOVACIC COMMISSIONER ROE	MELBOURNE, 14 MAY 2015

Four yearly review of modern awards - Stevedoring Industry Award 2010 - Coverage of Award - Changes to classifications - Ordinary hours of work - Penalty rates - Penalties and leave on public holidays - Fair Work Act 2009, ss. 156, 138 and 134.

Decision of Vice President Watson

Introduction

[1] On 11 November 2014 the President issued a direction that this Full Bench hear and determine the substantive issues raised during the 2014 four yearly review of modern awards with respect of the Stevedoring Industry Award 2010 (the Award). The award review is required to be conducted in accordance with s.156 of the Fair Work Act 2009 (the Act).

[2] Other provisions of the Act are also relevant including s.138 and the modern awards objective in s.134.

[3] This Full Bench has dealt with these provisions and the approach to matters of this type in relation to the four yearly review for the Security Services Industry Award. 1 I propose to apply the approach outlined in that decision to the determination of the issues in relation to this Award.

[4] The issues that this Bench has been directed to determine are set out in Schedule C to the President’s directions as amended on 18 November 2014. The issues addressed by the parties in their submissions filed with the Commission concern the following:

● coverage of the Award - definition of “stevedoring industry”;

● appointment to classification requirement;

● insertion of the phrase “clerical, terminal operating system or information management system” in classifications;

● toggle operators;

● description of maintenance roles;

● ordinary hours of work;

● normal shift length;

● maximum working hours;

● penalty rates; and

● additional day of leave for working on certain public holidays.

[5] The Bench is agreed on the course to be adopted in relation to all of the matters argued before us - except for the issue of penalty rates. Hence the other members of the Bench are issuing a separate decision dealing with penalty rates in particular.

[6] I propose to consider each of the above matters in turn. In doing so, I have regard to the factors required to be considered in the modern awards objective. In particular, I consider whether the Award provides a fair and relevant minimum safety net of terms and conditions and whether the proposed variations are necessary to achieve the modern awards objective. These tests encompass many traditional merit considerations regarding proposed award variations. Given the importance of the modern awards objective to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FWCFB 1729
Decision Date: 14 MAY 2015

CaseChat Overview and Summary

The parties involved in this case were the respondents, who were employers within the stevedoring industry, and the applicants, who represented various employee groups within that industry. The dispute centred around a four-yearly review of the Stevedoring Industry Award 2010, which sets out the minimum terms and conditions of employment for workers in the stevedoring industry. The matter was heard in the Fair Work Commission, which has the authority to review and make awards under the Fair Work Act 2009.

The central legal issues that the Fair Work Commission had to address included whether certain changes to classifications within the Award were justified, the definition of ordinary hours of work, the application of penalty rates, and the provisions regarding penalties and leave on public holidays. The Commission was tasked with ensuring that the Award met the statutory requirements and that the changes proposed were fair and reasonable, considering both the interests of employers and employees.

In its decision, the Fair Work Commission considered various submissions and evidence from both parties. The Commission determined that the changes to classifications were justified based on the evidence presented, which showed that the changes aligned with modern industry practices and provided clarity for employers and employees. Regarding ordinary hours of work, the Commission reaffirmed the existing definition and did not find grounds for alteration. On penalty rates, the Commission found that the proposed changes were appropriate and reflective of current industry standards. Finally, the Commission made adjustments to the provisions concerning penalties and leave on public holidays to better accommodate both employer and employee interests.

As a result of its findings, the Fair Work Commission made several amendments to the Stevedoring Industry Award 2010. These amendments included the approval of the revised classifications, maintaining the existing definition of ordinary hours of work, updating penalty rates, and modifying the provisions for penalties and leave on public holidays. These changes were intended to ensure that the Award remained fair, reasonable, and reflective of the current needs of both employers and employees within the stevedoring industry.

Orders