Straightline Ferry Service Pty LtdandThe Australian Workers’ Union
[2011] FWA 1222
•11 MARCH 2011
[2011] FWA 1222 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Straightline Ferry Service Pty Ltd
and
The Australian Workers’ Union
(C2011/3135)
PORTS, HARBOURS AND ENCLOSED WATERS VESSELS AWARD 2010
(ODN AM2008/49) [MA000052]
COMMISSIONER HAMPTON | ADELAIDE, 11 MARCH 2011 |
Application to deal with dispute under the terms of a modern award - parties agreed that FWA should initially determine whether nominated award is relevant for present purposes.
Introduction and background
[1] Straightline Ferry Service Pty Ltd (Straightline) has applied to Fair Work Australia to exercise its dispute resolution role pursuant to s.739 of the Fair Work Act 2009 (the Act).
[2] The Australian Workers’ Union (the AWU) has members employed by Straightline and has cooperated with the employer to bring this application.
[3] Straightline operates a vehicle and passenger ferry across the River Murray at Purnong in South Australia pursuant to a contract with the Department of Transport, Energy and Infrastructure (DTEI) acting on behalf of the South Australian Government.
[4] Much of the context for this matter is set by discussions between Straightline and DTEI about the terms of that contract and the appropriate mechanism to adjust the contract price in relation to changes in employment costs. That aspect is beyond the scope of these proceedings however confirmation of the appropriate industrial instrument is a live issue between the parties.
[5] This application has been made utilising the provisions of the Ports Harbours and Enclosed Waters Vessels Award 2010 (the PHEWV award). It has been agreed that Fair Work Australia should consider whether the PHEWV award is the appropriate instrument for present purposes. 1 I note in that regard that the essential facts are not in dispute and that both the AWU and Straightline sought clarity in this matter without necessarily seeking to argue contrary positions.
The nature and circumstances of the employer and the work in question
[6] Straightline is a national system employer, and thereby coming within the scope of the Act, by virtue of being a constitutional corporation. It has been employing staff in connection with the DTEI contract for some years and since 2008 under the current contract.
[7] The only business of Straightline is to operate the ferry at Purnong, which is on the River Murray between Swan Reach and Mannum in South Australia.
[8] There are presently three employees of Straightline who operate the ferry service on a rotating roster basis. This work involves, amongst other duties, supervising the movement of vehicles and passengers on and off the ferry and their configuration on the vessel, and piloting the ferry across the river in a safe and timely manner. In addition, the employees are involved with tying up and releasing the ferry from its moorings on each side of the river and they also perform general operational maintenance and cleaning on the ferry itself, the ferry cables and in the immediate area. Part of the duties also involves giving tourist advice and related directions.
[9] The employees also have a role under the Road Traffic Act 1961 (SA). This involves acting as an Inspector under that Act, which in turn includes checking permits, giving directions and the recording of traffic movements. The business also has responsibilities to act as a contact point for DTEI in the area.
[10] It is agreed that there is no Enterprise Agreement under the Act however there is an existing workplace agreement, the Straightline Ferry Service Pty Ltd Enterprise Agreement - AC300205 (the workplace agreement) which was apparently approved some time after March 2006 by the Workplace Authority under the former Workplace Relations Act 1996 (the WR Act). There is no indication that the workplace agreement has been rescinded or otherwise terminated and it does apply to Straightline and to the nature of work being considered here 2.
[11] I note that clause 2 Relationships to other industrial instruments of the workplace agreement indicates that there was no existing award coverage and that for the purposes of the “no disadvantage test” the SA Government Civil Construction and Maintenance Award (the SA Government award) would be used. This was an award of the Industrial Relations Commission of SA and did not apply to Straightline or its employees 3 under the terms of the relevant State industrial laws applicable at that time.4
[12] The workplace agreement set out terms and conditions for the ferry operators, including all inclusive rates of pay that were to be adjusted in line with the rise and fall provisions of the DTEI contract. This in turn permitted adjustments by reference to changes made to the SA Government award.
[13] Although it had a nominal life concluding on 3 June 2007, the workplace agreement has been preserved for the purposes of the Act by virtue of ss.2 and 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). This means that subject to certain caveats, the workplace agreement continues to apply to Straightline and its employees.
The scope of the Ports Harbours and Enclosed Waters Vessels Award 2010
[14] The PHEWV award was made on 4 September 2009, and subject to certain transitional arrangements, commenced to operate from 1 January 2010.
[15] The coverage of the award is expressed in the following terms:
“4. Coverage
4.1 This award covers employers throughout Australia in the port, harbour and enclosed water vessels industry and their employees in the classifications listed in clause 13 to the exclusion of any other modern award. The award does not cover employers and employees wholly or substantially covered by the following awards:
(a) the Maritime Offshore Oil and Gas Award 2010;
(b) the Seagoing Industry Award 2010;
(c) the Port Authorities Award 2010;
(d) the Dredging Industry Award 2010;
(e) the Stevedoring Industry Award 2010;
(f) the Marine Towage Award 2010; and
(g) the Marine Tourism and Charter Vessels Award 2010.
For the purpose of clause 4.1, ports, harbours and enclosed water vessels industry means the operation of vessels of any type wholly or substantially within a port, harbour or other body of water within the Australian coastline or at sea on activities not covered by the above awards.
4.2 The award does not cover maintenance contractors covered by the following awards:
(a) the Manufacturing and Associated Industries and Occupations Award 2010; or
(b) the Electrical, Electronic and Communications Contracting Award 2010.
4.3 The award does not cover employees of a local government covered by another award.
4.4 The award does not cover an employee excluded from award coverage by the Act.
4.5 The award does not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.
4.6 The award does not cover employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.
4.7 This award covers any employer which supplies labour on an on-hire basis in the industry set out in clause 4.1 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. This subclause operates subject to the exclusions from coverage in this award.
4.8 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.
NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.”
[16] The classifications, which are not expressly defined within the PHEWV award, are:
- Master
- Mate
- Engineer
- General Purpose Hand, Deckhand, Greaser, Passenger Attendant, Turnstile Attendant, Boating Attendant, Host, Fireman, Trimmer, Linesman, Cook, Sailor, Able Seaman, Leading Hand
- Shipkeeper
- Crane Driver (under 20 tonnes)
- Crane Driver (over 20 tonnes)
Does the Ports Harbours and Enclosed Waters Vessels Award 2010 apply to Straightline and its employees?
[17] The Act itself provides the basis for determining whether an award applies to national system parties.
[18] Sections 47 and 48 provide as follows:
“47 When a modern award applies to an employer, employee, organisation or outworker entity
...
(1) A modern award applies to an employee, employer, organisation or outworker entity if:
(a) the modern award covers the employee, employer, organisation or outworker entity; and
(b) the modern award is in operation; and
(c) no other provision of this Act provides, or has the effect, that the modern award does not apply to the employee, employer, organisation or outworker entity.
Note 1: Section 57 provides that a modern award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment.
Note 2: In a modern award, coverage of an outworker entity must be expressed to relate only to outworker terms: see subsection 143(4).
Modern awards do not apply to high income employees
(2) However, a modern award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) at a time when the employee is a high income employee.
Modern awards apply to employees in relation to particular employment
(3) A reference in this Act to a modern award applying to an employee is a reference to the award applying to the employee in relation to particular employment.
48 When a modern award covers an employer, employee, organisation or outworker entity
...
(1) A modern award covers an employee, employer, organisation or outworker entity if the award is expressed to cover the employee, employer, organisation or outworker entity.
Note: In a modern award, coverage of an outworker entity must be expressed to relate only to outworker terms: see subsection 143(4).
Effect of other provisions of this Act, FWA orders or court orders on coverage
(2) A modern award also covers an employee, employer, organisation or outworker entity if any of the following provides, or has the effect, that the award covers the employee, employer, organisation or outworker entity:
(a) a provision of this Act or of the Fair Work (Registered Organisations) Act 2009;
(b) an FWA order made under a provision of this Act;
(c) an order of a court.
(3) Despite subsections (1) and (2), a modern award does not cover an employee, employer, organisation or outworker entity if any of the following provides, or has the effect, that the award does not cover the employee, employer or organisation or outworker entity:
(a) a provision of this Act;
(b) an FWA order made under a provision of this Act;
(c) an order of a court.
Modern awards that have ceased to operate
(4) Despite subsections (1) and (2), a modern award that has ceased to operate does not cover an employee, employer, organisation or outworker entity.
Modern awards cover employees in relation to particular employment
(5) A reference to a modern award covering an employee is a reference to the award covering the employee in relation to particular employment.”
[19] Leaving aside the impact of the workplace agreement for the moment and ignoring aspects that are not relevant here, 5 the PHEWV award will apply to Straightline and its employees if they are covered by that award. This in turn involves the consideration as to whether the modern award is expressed to cover Straightline and its employees in terms of the work that is performed.
[20] I have earlier set out the scope of the PHEWV award. I have considered whether any other modern award, including those set out in the exclusions in clauses 4.1 and 4.2 of the award, might apply to the work in question. I am satisfied that there is no alternative instrument that would exclude the coverage of this award.
[21] Accordingly, the PHEWV award will cover the parties provided that Straightline is considered to be in the “ports, harbours and enclosed vessels industry” and the work of the employees is contemplated by the classifications in clause 13 of the award.
[22] The industry is defined by the award in clause 4.1 as meaning “the operation of vessels of any type wholly or substantially within a port, harbour or other body of water within the Australian coastline”.
[23] As part of the process of making the various modern awards, the then Australian Industrial Relations Commission (the AIRC) outlined its intended coverage of the awards through a series of decisions during 2008 and 2009 that refined both the scope and content of those instruments. Relevantly for present purposes, the AIRC said the following in relation to what is now the modern award being considered here:
“[172] We publish a draft Ports, Harbours and Enclosed Water Vessels Award 2010. It covers all marine operations in enclosed waters including ferries, barges, and all other miscellaneous vessels. We consider that tourist based charter operations should be excluded as these are more appropriately combined with seagoing tourist charter operations and covered by an award developed by reference to existing standards in the tourist industry. We deal with this award later.” 6
[24] Later in September 2009, the AIRC said in a decision confirming many of the modern awards to be made:
“Ports, Harbours and Enclosed Vessels Award 2010
[219] The Maritime Union of Australia (MUA) and The Australian Institute of Marine and Power Engineers (AIMPE) sought to retitle the award as the Maritime Industry General Award to reflect a desire that the award apply to vessels which venture beyond ports and harbours. The current scope clause is not so confined but we have decided to make this clearer by adding additional words to the definition of the industry. We decide below to confirm the Marine Tourism and Charter Vessels Award 2010. Employers and employees covered by that award will be excluded from the provisions of this award. It is unnecessary to maintain an exclusion with respect to the Sugar Industry Award 2010. Exclusion of employees of local governments and maintenance contractors have been inserted. We consider that the existing title of the award is preferable to the alternative suggested.
[220] We have deleted the definitions for classifications as submitted by the MUA and AIMPE and the definitions were unnecessary in the circumstances of this employment. Other minor changes have been made.
[221] We recognise the impact of the wage rates we have established for this award on employers covered by the Motor Ferries State Award and Wire Drawn Ferries (State) Award. However a consideration of the wage rates for all current awards has led us to the conclusion that the rates we have adopted are more representative of rates in existing minimum rates prescriptions. Transitional arrangements will ameliorate the impact to some extent.” 7
[25] In terms of the classifications, I note that the parties referred to in para [220] of the above Full Bench decision, had earlier proposed a specific definition of Ferry Engine Driver that was taken from the Wire Drawn Ferries (State) Award. 8I note also that this classification was not expressly contained in that same draft and the parties subsequently suggested that it was not necessary to contain definitions for the classifications which now appear in the PHEWV award.9 However, there is no indication in the decision of the AIRC that it intended to narrow the scope of the award as originally stated when confirming the classifications or removing the definitions.
[26] Accordingly, for present purposes the scope of the PHEWV award as finally issued remained largely in the draft form as published.
[27] It is also clear that the AIRC considered ferries to be vessels. This would appear to be consistent with the meaning of “vessel” as used in various statutes 10 and with the common usage of the term when used in connection with transport over water. There is no discussion of the concepts of “enclosed waters” or “body of water” by the AIRC or contained within the PHEWV award, however in the context in which they are used such would have to include rivers within Australia. Indeed, one of the two former State awards11 that have been superseded by the PHEWV award as mentioned in the AIRC’s September decision, covers the same nature of work that is undertaken by Straightline. That is, it applied to parties operating ferries of the very same nature as being operated by the employer in this matter (cable drawn ferries operated by contractors to a State Government that may include single crew operation).12
[28] In terms of the scope of the classifications within the award, although the titles do not directly equate to those presently used at this workplace, the nature of work in this workplace is clearly comprehended. I leave aside the question as to which particular classification would apply pending further views from the parties should that issue need to be advanced at some stage.
[29] I am satisfied for present purposes that the PHEWV award covers Straightline and its employees. This means that it is applicable for certain purposes of the Act however it will not be relevant in terms of specifying minimum terms and conditions unless it also applies to the parties.
[30] Section 28 of the Transitional Act provides in effect that the PHEWV award (or any other modern award) does not apply where a preserved workplace agreement applies. As a result, in this case the workplace agreement continues to operate and applies to the parties and the PHEWV award, which would otherwise apply, is not generally relevant.
[31] I note however that the rates in the workplace agreement should have been adjusted in line with movements in the SA Construction award that have taken place since that agreement’s approval. 13 Further, the parties should note that since January 2010, the terms of the National Employment Standards (by virtue of s.23 of the Transitional Act) and the base rate of pay that would otherwise be payable to the employees under the PHEWV award (by virtue of Item 13 of Schedule 9 of the Transitional Act) apply as a minimum. This means that the terms of the workplace agreement as adjusted continue to apply unless the National Employment Standards or PHEWV award base rate of pay are greater, in which case, the more generous provision in each case is to be provided by the employer.
Conclusions
[32] I am satisfied for present purposes that the Ports Harbours and Enclosed Waters Vessels Award 2010 covers Straightline and its employees but it does not presently apply. Accordingly, it does not represent an appropriate vehicle to bring these proceedings.
[33] The parties may however be able to utilise the relevant provisions of the WR Act 14 given that the workplace agreement continues to apply and the Transitional Act has preserved the operation of that Act in those circumstances.
[34] Should further information come to light that would impact on the findings made to date, the parties may apply to have this matter further considered and liberty is granted to that extent.
Appearances:
R Neate for Straightline Ferries Pty Ltd.
J Hanson with K Rogers for the Australian Workers’ Union.
J Summerton (from Public Sector Workforce Relations) with P Gelston, K Wynne and R Edwards for the South Australian Department of Transport, Energy and Infrastructure (attending to assist the Tribunal).
Conference details:
2011
Adelaide
February 23.
Written submissions:
2011
March 4, 9.
1 This involves the consideration of the coverage of the award for the purposes of determining jurisdiction in relation to this application rather than a declaration that would clearly be the province of a Court of competent jurisdiction.
2 Straightline has subsequently confirmed to Fair Work Australia that no steps have been taken to rescind or terminate the workplace agreement.
3 The SA Construction award applied only to the SA Government and ferry operation was also not canvassed in its scope.
4 Fair Work Act 1994 (SA).
5 If the employees are high income earners as defined they would still be covered by the award but the award would not apply.
6 AIRC Award Modernisation Statement [2009] AIRCFB 450, 22 May 2009.
7 AIRC Award Modernisation - Decision [2009] AIRCFB 826, 4 September 2009.
8 Submissions of MUA and AIMPE to AIRC, 6 March 2009.
9 Submissions of MUA and AIMPE to AIRC, 12 June 2009.
10 See for example Navigation Act 1912 - S.294 and Environment Protection and Biodiversity Conservation Act 1999 - S.528.
11 These are former awards of the Industrial Relations Commission of NSW. I note that there was no directly equivalent award applying in the former South Australian system.
12 See clause 31 Area, Incidence and Duration and the classifications of the Wire Drawn Ferries (State) Award (NSW).
13 Movements in the SA Construction award are made relevant by the terms of the workplace agreement. I understand that this award has been subject to annual safety net adjustments during the period since the workplace agreement was approved.
14 S.709 of the WR Act.
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