MUA Update on FWC Hearing regarding Professional Diving Industry (Industrial) Award 2010

On 19 December 2017, the MUA appeared  before the Full Bench of the Fair Work Commission in relation to the Professional Diving Industry (Industrial) Award 2010. Representatives from the MUA, Australian Mines and Metals Association (AMMA) and Fremantle Commercial Diving (FCD) appeared and made submissions. Attached is the Decision of the Full Bench following the hearing.

During the hearing the MUA submitted that we wished to pursue an evidentiary based case to support the retention in the Award of ordinary hours of 6 hours and 36 minutes per day, Monday to Friday, for inshore divers.

The Full Bench observed that the provisions stating that full time divers are engaged to work an average of 38 hours per week, and that a casual employee will be paid 1/38th of the relevant minimum wage plus a 25% loading, which were determined with the handing down of the Award in 2010, were not altered by the Full Bench Order of 13 June 2017 ie, casual employees hours of work have always been calculated based on 1/38th of the relevant weekly wage (also see para [3] of the attached Decision).

Furthermore, both AMMA and FCD sought clarification as to at what point daily overtime under the Award became payable for inshore divers. FCD submitted that although it had been paying inshore divers an hourly rate based on a 38 hour week, it had been paying overtime on a daily basis after 6 hours and 36 minutes work, and that some of its competitors had ceased doing this after the 13 June 2017 variation.

At paragraph 7 the Full Bench determined:

“We do not propose at this stage to determine the MUA’s application to be permitted to file further evidence for the purpose of revisiting the 13 June 2017 variation. We consider that a more constructive course would be for the parties to endeavour to reach an agreement to insert a daily overtime provision in the Award which would mitigate any adverse effect of the 13 June 2017 variation. We direct the parties to confer about this, and to report the progress of such discussions to the Commission (chambers.hatcher.vp@fwc.gov.auby 5.00 29 January 2018. If the parties consider that such discussions would be assisted by the conduct of a conference by a member of the Commission, this will be arranged upon request”

To address the most recent Full Bench decision the Union seek your assistance to clarify the following:

  1. Are any inshore divers actually being paid under the Award?
  2. If the answer yes to Q1: have any divers casual rates of pay been reduced after the Full Bench 13 June 2017 variation?
  3. Are inshore divers paid overtime after working 6 hours 36 minutes per day?
  4. If the answer is yes to Q3: since the Full Bench 13 June 2017 variation has there been a change to inshore divers overtime payments being paid after 6 hours 36 minutes? If yes what is what is the change? (For example is overtime now being paid after 7.6 hours rather than 6hours 36 minutes?)

Please send your response directly to Adam Jacka, National Legal Officer at email: adam.jacka@mua.org.au

You can read the full statement here.