Application by Katherine West

[2023] FWC 1346

[2023] FWC 1346

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

s.160—Application to vary a modern award to remove ambiguity or uncertainty or correct error

Application by Katherine West

(AM2023/10)

JUSTICE HATCHER, PRESIDENT SYDNEY, 7 JUNE 2023

Application to vary the General Retail Industry Award 2020

1. On 4 May 2023, Katherine West lodged an application to vary clause 16 of the General Retail Industry Award 2020 (Retail Award) to clarify the status of rest breaks. In particular, Ms West sought to address ambiguity about whether these breaks should be paid and if so at what rate, and whether they should count towards time worked.

1. Ms West brought her application under s 160 of the Fair Work Act 2009 (Cth) (FW Act). Section 160 provides:

   160 Variation of modern award to remove ambiguity or uncertainty or correct error

   (1)The FWC may make a determination varying a modern award to remove an ambiguity or uncertainty or to correct an error.

   (2)The FWC may make the determination:

   (a)on its own initiative; or

   (b)on application by an employer, employee, organisation or outworker entity that is covered by the modern award; or

   (c)on application by an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award; or

   (d)if the modern award includes outworker terms—on application by an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the outworker terms relate. (underlining added)

1. On 26 May 2023 the Commission’s Awards team wrote to Ms West and asked her to confirm her standing to make the application under s 160(2)(b) of the FW Act. Ms West advised later on 26 May 2023 that: ‘I am an employee employed as a payroll administrator for 30 staff covered under the [Retail Award]’.

1. On 29 May 2023 my Chambers wrote to Ms West again and asked her to clarify whether she herself was covered by the Retail Award in her capacity as the applicant. On 1 June 2023 Ms West advised as follows: ‘I am not covered under the [Retail Award] however I process the pays for 30 [Retail Award] employees and looking to remove any ambiguity regarding paid breaks’.

1. On the basis of the information provided by Ms West, she is not a person entitled under s 160(2)(b) to make an application to vary a modern award under s 160(1). It is my provisional view that Ms West’s application should therefore be dismissed as incompetent. Interested parties may file any submissions in response to my provisional view by 5:00 pm (AEST) on 14 June 2023. If no submissions are received, Ms West’s application will be dismissed.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR762891>