FWCFB 10059
FAIR WORK COMMISSION
Australian Federation of Employers and Industries
Fair Work Act 2009
s.604—Appeal of decision
Marine tourism and charter vessels
JUSTICE BOULTON,SENIOR DEPUTY PRESIDENT
SYDNEY,20 DECEMBER 2013
Appeal against decision  FWC 8575 of Deputy President Sams at Sydney on 31 October 2013 in matter number AM2012/235.
 This is an appeal pursuant to s.604 of the Fair Work Act 2009 (the Act) by the Australian Federation of Employers and Industry (AFEI) against the decision 1 and determination2 of Deputy President Sams in relation to the transitional review of the Marine Tourism and Charter Vessels Award 2010 (the Award). The review was conducted pursuant to Item 6,Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009,which requires the Fair Work Commission (the Commission) to conduct a review of each modern award after two years. In the review,the Commission must consider whether the award achieves the modern awards objective and is operating effectively,without anomalies or technical problems arising from the award modernisation process conducted under Part 10A of the Workplace Relations Act 1996.
 At the conclusion of the hearing of the appeal on 19 December 2013,the following decision,now edited,was given in transcript.
 The decision of the Deputy President corrected what all parties agreed was an obvious error in the making of the modern award. The error related to employees under the Award progressing to the Crew Level 2 wage rate after completing the probationary period. The Award erroneously referred to progression to the Crew Level 3 wage rate.
 When the Deputy President corrected the error he made an order which provided that progression would be to the Crew Level 2 wage rate. The Deputy President decided that employees who had received the higher payment in the period since the making of the modern award would not be required to repay the overpayment. It was also decided that those employees who were in receipt of the higher rate prior to the decision would continue to be entitled to that wage rate.
 In the appeal,AFEI challenge that part of the Deputy President’s decision which continues the higher payment for existing employees into the future.
 We have considered this matter and it appears to us that the submissions relating to operative date and retrospectivity in the proceedings before the Deputy President added a level of confusion to the matter which was not necessary. AFEI now do not seek a retrospective operation of the determination.
 The modern awards objective,which the Deputy President was obliged to apply pursuant to s.134 of the Act,provides for the making of a fair and relevant minimum safety net of terms and conditions of employment.
 We have considered the matters raised in the appeal and we are satisfied that the Deputy President fell into error in determining that the overpayment should continue in relation to some employees beyond the date of the correction order. The error arose in relation to the construction and application of Clause 2.4 of the Award and in his consideration of the relevant minimum safety net for such employees.
 In these circumstances we have decided that it is appropriate to grant permission to appeal and to allow the appeal. We have proceeded,on the basis of the submissions and materials before us,to decide the matter for ourselves.
 We note that the parties are agreed that a technical error existed in the Award. We also note that,save for the issues relating to operative date and the continued payment of the higher rate for some employees,the parties are generally in agreement on how the error should be corrected. AFEI now seek an operative date as the date of the Deputy President’s order.
 On the basis of the submissions in the appeal we have decided that it is appropriate that the error identified be corrected and that,as decided by the Deputy President,an operative date should be set such as will not have the effect of disadvantaging by way of requiring repayment by any of the employees who have been overpaid to date. However,we have taken the view that it is not appropriate that the overpayment of such employees as prescribed by the order of the Deputy President should be continued beyond the date which we have decided.
 Accordingly we will make an order varying the Award as sought by AFEI in the appeal proceedings but with an operative date of 19 December 2013.
 A determination varying the Award in the terms which we have decided is published together with this decision 3.
SENIOR DEPUTY PRESIDENT
Mr S Forster for the Australian Federation of Employers and Industry.
Mr W McNally,Solicitor for the Maritime Union of Australia.
Mr N Niven for the Australian Institute of Marine and Power Engineers.
1  FWC 8575.
2 See PR544373 dated 12 November 2013. Note this is a reference to the Amended Determination which corrected the initial determination made by the Deputy President on 31 October 2013 (PR544015).
3 See PR546131.
Printed by authority of the Commonwealth Government Printer
<Price code A, MA000093 PR546130>