Application by Katherine West

[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

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.

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)

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]’.

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’.

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

CaseChat Overview and Summary

Katherine West applied to the Fair Work Commission under section 160 of the Fair Work Act 2009, seeking a variation to clause 16 of the General Retail Industry Award 2020. The application aimed to clarify the status of rest breaks, including whether they should be paid, the rate of pay, and whether they should count towards time worked. Ms West, who is employed as a payroll administrator responsible for processing the pays of 30 employees covered by the Retail Award, brought the application despite not being covered by the award herself. The Commission considered whether Ms West had the standing to apply under section 160(2)(b) of the Act.

The legal issue before the Commission was whether Ms West, as a payroll administrator, had the standing to apply for a variation to the Retail Award under section 160(2)(b) of the Fair Work Act. This section allows an employee covered by a modern award to apply for such a variation. The Commission needed to determine if Ms West's role and her coverage under the award qualified her to make the application. Ms West clarified that she was not covered by the Retail Award but sought to address ambiguities affecting the employees she processes pays for. The Commission had to assess if her role and the nature of her application met the statutory requirements.

The Commission found that Ms West did not have the requisite standing to apply for a variation to the Retail Award under section 160(2)(b) of the Fair Work Act. Ms West was not herself covered by the award, and her role as a payroll administrator did not confer the necessary entitlement to make such an application. The Commission provisionally concluded that Ms West's application should be dismissed as incompetent. Interested parties were invited to file submissions by 5:00 pm (AEST) on 14 June 2023, after which the application would be dismissed if no submissions were received.

The Commission ordered that submissions in response to the provisional view be filed by 5:00 pm (AEST) on 14 June 2023. If no submissions were received, the application by Katherine West would be dismissed. This order provided a deadline for interested parties to challenge the Commission's preliminary conclusion and potentially influence the final determination on the application's competency.

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