Application by The Australian Industry Group Summary

[2024] FWC 48

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Application by The Australian Industry Group

(AM2023/16)

VEHICLE REPAIR, SERVICES AND RETAIL AWARD 2020

[MA000089]

Vehicle industry
JUSTICE HATCHER, PRESIDENT	SYDNEY, 9 JANUARY 2024

Application to vary clause 10 of the Vehicle Repair, Services and Retail Award 2020 – part-time employees – no comments on draft determination or provisional view – provisional view confirmed – award varied.

In my statement[1] of 16 November 2023, I expressed the provisional view that The Australian Industry Group’s (Ai Group’s) proposed variation to clause 10.4 of the Vehicle Repair, Services and Retail Award 2020 (Award) should be made pursuant to s 160(1) of the Fair Work Act 2009 (Cth) (FW Act), on the basis that it would resolve uncertainty concerning the form and term of any written agreement under that clause. Interested parties were invited to respond to my provisional view by 7 December 2023.

No submissions were received in response to my provisional view. Accordingly, I confirm my provisional view. I consider that the variations are necessary pursuant to s 160 of the FW Act to remove uncertainty. Clause 10.4 of the Award will be varied to add the words underlined below:

10.4 Any agreed variation to the hours of work will be recorded in writing (including by electronic means). Any such agreement may be ongoing or for a specified period of time).

A determination varying the Award as set out above is published with this decision. The determination will operate from today, 9 January 2024.

PRESIDENT

[1] [2023] FWC 2995.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Industry Group (Ai Group) applied to the Fair Work Commission for a variation of the Vehicle Repair, Services and Retail Award 2020. The application sought to amend clause 10.4 of the Award to resolve uncertainty regarding the form and term of written agreements under that clause. The application was heard by Justice Hatcher, President of the Commission, who issued a decision on 9 January 2024. The Commission considered the application under section 160 of the Fair Work Act 2009, which allows for variations to modern awards to remove ambiguity or uncertainty or correct errors. The President had previously expressed a provisional view on 16 November 2023, inviting interested parties to respond by 7 December 2023. No submissions were received, and the President confirmed the provisional view, finding that the variations were necessary to remove the identified uncertainty.

The legal issue before the Commission was whether the proposed variation to clause 10.4 of the Award was appropriate to resolve the identified uncertainty. The President found that the variation was necessary to achieve this purpose. The Commission noted that no comments had been received from interested parties in response to the provisional view, which supported the confirmation of the provisional view. The President confirmed that the variations would effectively remove the uncertainty concerning the form and term of any written agreement under clause 10.4. The variation involved adding words to clause 10.4 to clarify that any agreement may be ongoing or for a specified period of time.

The President confirmed the variation of clause 10.4 of the Award as proposed by Ai Group, effective from 9 January 2024. The variation clarified that any agreement regarding the variation of hours of work would be recorded in writing and could be ongoing or for a specified period of time. This change addressed the uncertainty that had been identified, as it provided clear guidance on the form and term of written agreements under the clause. The determination was published alongside the decision and would operate from the date of the decision. The President's decision effectively resolved the issue of uncertainty in the Award and provided clarity for the parties involved in the award.

Application by The Australian Industry Group

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established