Application by Alberto Contreras Martinez

[2024] FWC 2648

[2024] FWC 2648

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.158—Application to vary or revoke a modern award

Application by Alberto Contreras Martinez

(AM2023/29)

JUSTICE HATCHER, PRESIDENT SYDNEY, 25 SEPTEMBER 2024

Application to vary minimum rates of pay for 'housekeepers’ in the Hospitality Industry (General) Award 2020 – no reasonable prospects of success – application dismissed.

1. On 11 December 2023, Mr Alberto Contreras Martinez filed an application pursuant to s 158 of the Fair Work Act 2009 (Cth) to vary the Hospitality Industry (General) Award 2020[1] (Award). The application sought ‘[c]hanges to the minimum wage set at $23[.]23’ for ‘housekeepers’ under the Award. It did not identify any specific variation that was sought, but rather asserted the inadequacy of existing wage rates and urged the Commission ‘to conduct a thorough review of the minimum wage for housekeepers in Queensland’ having regard to their ‘skills, responsibilities, and contributions … as well as the value of the services they provide’.

1. Mr Martinez’s application was listed for an initial directions hearing on 13 February 2024. The applicant did not attend and the directions hearing therefore did not proceed on that day. It later transpired that he had not been aware of the notice of listing.

1. The application was relisted for directions on 27 February 2024 at 2:00 pm (AEDT)/1:00 pm (AEST), being a time of day that Mr Martinez had indicated would be suitable given his work schedule. My Associate telephoned Mr Martinez shortly before the relisted directions hearing was due to commence to confirm his participation. Mr Martinez indicated during that brief conversation that he would join the relevant Microsoft Teams meeting to appear by video link. However, he did not subsequently appear and the directions hearing proceeded in his absence.

1. A short time after the directions hearing had concluded, Mr Martinez emailed my chambers advising that he had thought it was due to proceed at 2:00 pm (AEST) because he was based in Queensland. Given all that had already occurred, I determined not to list the matter for a third time, but instead issued the following directions on 28 February 2024 for the applicant to file material in support of his application:

1.Alberto Contreras Martinez (the applicant) is to file:

(a)a draft determination setting out his proposed variations to the Hospitality Industry (General) Award 2020;

(b)his own witness statement and any other evidence on which he wishes to rely in support of those proposed variations; and

(c)written submissions addressing the requirements in sections 134, 157, 158 and 284 of the Fair Work Act 2009 (Cth) that are relevant to his application

by 5:00 pm (AEST) on Wednesday, 24 April 2024.

2.The applicant is at liberty to apply to vary the above direction by emailing my chambers.

1. Mr Martinez did not file any material by the deadline. Nor did he email my chambers to apply for an extension of time to do so. At 2:20 pm on 26 April 2024, my chambers emailed the applicant directing him to provide any advice as to why I should not dismiss his application under s 587(1)(c) of the FW Act by 3 May 2024.

1. At 2:31 pm that day, Mr Martinez responded by email to my chambers. The entirety of his email (omitting formal parts) was as follows:

… here is attached the reason why my request to change the award should not be dismissed.

·The reason for this adjustment in our payment rate is the physical demand is like going to the gym 4 or 5 days a week to do cardio for 4 to 6 hours.

·Work rarely 5 days mostly 4 days

And not 8 hours but only 6 hours besides that is because is physically impossible to work more than that.

·a room in the hotel per night is between 600 a night to 1200 we get 11.5 because we only have 30 minutes to get the room done.

·the Rent for one bedroom apartment in Australia nowadays is minimum 500 a WEEK most of us take home 1000 a FORTNIGHT

·No body complains because there is many people from overseas or students so they don’t want to get involved as they will leave the country within months.

·If we work all year full time hours our wage is roughly 45k after tax 38k after super 33k and 50% of that is for rent what’s left for living expenses is 15k

·4 hours max weekend loadings mean if you don’t work any weekend because you want to spend time with your family you don’t make the money so compulsory you must work weekends.

BUT WEEKENDS WE ARE SENT HOME TO FINISH EVERYTHING ON MONDAY WHEN THE RATE IS LOW

Appreciate if you don’t dismiss my request

1. Mr Martinez has clearly failed to comply with the directions of 28 February 2024. He has not at any stage properly identified the variation to the Award which he seeks, which places in question whether he has in fact made a valid application ‘for the making of a determination varying ... a modern award’ under s 158(1) of the FW Act. In any event, he has not filed anything by way of evidence or submissions which addresses the statutory criteria necessary for the variation of a modern award. In particular, he has not filed anything which raises a reasonably arguable case that any variation to the Award is necessary to meet the modern awards objective or the minimum wages objective in ss 134(1) and 284(1) respectively, or that there are any work value reasons justifying an adjustment to wages as required by s 157(2)(a). This matter is yet another illustration of ‘the deficiency in an approach whereby a single employer or employee seeks an industry-wide variation to an industry award by reference only to their own circumstances and interests’.[2]

1. Section 587(1) of the FW Act provides:

587Dismissing applications

(1)Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a)the application is not made in accordance with this Act; or

(b)the application is frivolous or vexatious; or

(c)the application has no reasonable prospects of success.

1. For the above reasons, I consider that the application has no reasonable prospects of success. Pursuant to s 587(1)(c) of the FW Act, the application is dismissed.

PRESIDENT

Written submissions:

Alberto Contreras Martinez: 26 April 2024.

[1] MA000009.

[2] Application by Woolworths Group Limited [2023] FWCFB 139 [39]; see also Application by Emma Treves [2023] FWCFB 98 [70], [72]–[74] and Application by The Allison and Phil Family Trust t/a my OSHC [2024] FWCFB 144 [18]–[20].

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