Industrial Relations Commission New South Wales Medium Neutral Citation: Marine Charter Vessels (State) Award [2022] NSWIRComm 1009 Hearing dates: Determined in Chambers Date of orders: 2 March 2022 Decision date: 02 March 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The Marine Charter Vessels (State) Award is rescinded pursuant to s 20(2) of the Industrial Relations Act 1996. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Awards – Review of awards – rescission of obsolete award Legislation Cited: Industrial Relations Act 1996 ss 19, 20 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Local Government and Shires Association of New South Wales Maritime Union of Australia The Seamen's Union of Australia, New South Wales Branch Unions NSW Representation: I Mann (LGNSW) M Cope (MUA and Seamen's Union) E Yap (Unions NSW) File Number(s): 2021/201428 Publication restriction: No decision 1. On 9 August 2021 the Industrial Registrar issued a Notice of Award Review, giving notice of the Commission's intention to review the Marine Charter Vessels (State) Award ("Award") pursuant to s 19 of the Industrial Relations Act 1996 ("Act"). The Notice was issued to the following parties identified by the Registrar, from records kept by the Industrial Registry, as having an interest in the Award: 1. Australian Federation of Employers and Industries ("AFEI"); 2. Local Government and Shires Association of New South Wales ("LGNSW"); 3. Maritime Union of Australia ("MUA"); 4. The Seamen's Union of Australia, New South Wales Branch; and 5. Unions NSW. 1. The matter was listed for mention on 24 September 2021. Mr J McGrath appeared on behalf of AFEI. There were no other appearances. Mr McGrath informed me that AFEI considered that it no longer had an interest in the Award. I stood the matter over to 19 October 2021 for mention. 2. On 28 September 2021 I arranged for the Registrar to send an email to the parties on the party card for the Award asking that they inform the Commission whether they still held an interest in the Award, or whether the Award should be regarded as obsolete. The email informed the parties that the matter was listed for mention on 19 October 2021. To my knowledge, there was no response to that email. 3. At the mention on 19 October 2021 only LGNSW appeared, represented by Mr I Mann. He stated that LGNSW had no interest in the Award. I stood the matter out of the list for consideration as to whether the Award ought to be rescinded on the basis that it was obsolete. 4. As a result of developments in the 2021 State Wage Case, I listed this matter for further mention on 6 December 2021. On that occasion Mr M Cope appeared for the MUA and the Seamen's Union. Mr E Yap appeared for Unions NSW. During the mention, Mr Yap stated: YAP: Yes. I'll be doing that Commissioner, but if we're having difficulty with getting clarity about some issues, so given the, pardon me for being too colloquial, foot flopping on the issue of coverage, because we've had several chats with Local Government New South Wales about this issue, but every time, there seems to be a - it's a question, so I understand the 19 October call over, there was no interest, but then subsequently, Local Government New South Wales signed consent orders for wage rates to be increased in the State Wage Case and then we had a conversation after that where we identified that were four local councils that were covered and that they were going to [survey] their members, their local council members, and then subsequent to that, there was another discussion where it was raised that there might not be any employees covered. So I will confer but, with Local Government New South Wales, but we may need the Commission to put forward directions with some specificity as to how to determine the detailed coverage, if the Commission is minded to do so. 1. I directed that the parties confer with a view to confirming the coverage of the Award and listed the proceedings for further mention on 1 February 2022. 2. At the mention on 1 February 2022 I had the following exchange with the parties: [YAP]: Commissioner, if I may, so just by way of background, in October last year Unions NSW, after having conferred with Local Government NSW, we wrote to the Commission in relation to these section 19 proceedings and the State Wage Case proceedings identifying four possible local councils where this award still covers employees and Local Government NSW undertook to conduct a survey of those councils and in December in the last call-over for the section 19 proceedings the Commission directed Unions NSW and Local Government NSW to confer as to the issue of coverage. Mr Mann and I have since discussed the issue and Mr Mann has diligently the work [sic] to survey its members and I'll let Mr Mann speak as to the results of the survey. COMMISSIONER: Thank you. Mr Mann? MANN: Thank you, Commissioner. Thank you, Mr [Yap]. So the four councils in question were Bourke Shire Council, Edward River Council, Ballina Shire Council and Port Macquarie Hastings Council. So we surveyed the membership as a whole, but contacted the HR managers of each of these councils directly. I can confirm that speaking with the HR managers of each of these councils that none of these councils are currently using the award and there is no memory of the award ever being used by these councils. … COMMISSIONER: So is it the position of Local Government NSW that the award no longer has any application to its members? MANN: That is correct, Commissioner. COMMISSIONER: Mr [Yap], is there any contest to that assertion? [YAP]: No, in the context of Local Government NSW survey we can't sort of logically contest that, we have to accept the findings of Local Government NSW and also in the context of the industrial relations split between state and federal systems, if there were no state government employees or local government employees covered, logically there doesn't seem to be any other employees that could be covered, but I do not have any instructions in terms of saying definitively that the award is obsolete on that basis because I guess the unions are wary about proving a negative, but speaking personally and professionally for myself, logically there appears to be no employees covered, but I do not have instructions to say that the award is obsolete and we would defer to the Commission's judgment in that regard. … COMMISSIONER: Mr Cope, I should have asked you, is there anything that you wanted to add to what Mr [Yap] has put forward? COPE: No, Commissioner, thank you, Mr [Yap] has been instrumental in finding out all this information as to whether or not the award is obsolete from the councils so I've been relying on him. So all good. COMMISSIONER: Thank you. Mr [Yap], I don't propose to write to the parties if only because time is a bit precious at the moment for all of us. What I will simply indicate again is this, that on the information currently available to the Commission it would appear that this award has become obsolete and on that basis I am considering making an order under s 20(2) of the Industrial Relations Act to rescind the award. If a party has any objection to such an order being made, they are to inform the Commission in writing of their objection and the basis of their objection by 4pm on 8 February 2022. 1. The Commission received no communication from any of the parties objecting to the rescission of the Award. 2. I am satisfied that the Award is obsolete in that there are no longer any employees falling within its coverage. It is appropriate that an order be made that it be rescinded. Order 1. The Marine Charter Vessels (State) Award is rescinded pursuant to s 20(2) of the Industrial Relations Act 1996. Damian Sloan Commissioner ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 March 2022