Application by The Australian Industry Group

[2023] FWC 2995

[2023] FWC 2995

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

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

Application by The Australian Industry Group

(AM2023/16)

VEHICLE REPAIR, SERVICES AND RETAIL AWARD 2020

[MA000089]

JUSTICE HATCHER, PRESIDENT SYDNEY, 16 NOVEMBER 2023

Application to vary the Vehicle Repair, Services and Retail Award 2020 – clause 10 – part-time employees – provisional view.

1. On 5 July 2023, the Australian Industry Group (Ai Group) lodged an application to vary clause 10 of the Vehicle Repair, Services and Retail Award 2020 (Award) pursuant to ss 158(1) and 160(2)(c) of the Fair Work Act 2009 (Cth) (FW Act). Clause 10 relates to part-time employees. Currently, it relevantly provides as follows:

10. Part-time employees

…

10.2 A part-time employee:

(a)is engaged to work less than 38 ordinary hours per week;

(b)has reasonably predictable hours of work; and

(c)receives, on a pro rata basis, equivalent pay and conditions to those of full-time employees who do the same kind of work.

10.3 At the time of engagement, the employer and the part-time employee will agree in writing on the following:

(a)the hours worked each day;

(b)which days of the week the employee will work;

(c)the actual starting and finishing times each day;

(d)that any variation must be in writing;

(e)all time worked in excess of agreed hours is paid at overtime rates; and

(f)the times of taking and the duration of meal breaks.

10.4 Any agreed variation to the hours of work will be recorded in writing.

…

1. In its application as filed, the Ai Group sought three categories of variations:

(1)inserting references to ‘ordinary hours’ in clauses 10.2, 10.3 and 10.4 to clarify that the provisions do not apply to overtime hours;

(2)varying clause 10.4 to clarify that the requirement to record agreed variations in writing includes recording by electronic means; and

(3)further varying clause 10.4 to clarify that any such agreed variation may be ongoing or for a specified period.

1. I held an initial directions hearing in relation to the application on 13 July 2023. The Ai Group, the Victorian Automotive Chamber of Commerce (VACC) and the Shop, Distributive and Allied Employees’ Association (SDA) appeared. The agreed course arising from that directions hearing was that I would convene a conference to discuss the proposed variations further.

1. On 7 August 2023, I held a conference, at which the same interested parties appeared. Neither the VACC nor the SDA opposed the proposed ‘category 2’ and ‘category 3’ variations. In relation to the proposed ‘category 1’ variations, the VACC was unsure that the relevant clauses were ambiguous or uncertain, though the proposed variations were consistent with its understanding of those clauses.[1] The SDA indicated that it considered the ‘category 1’ variations unnecessary, and was concerned that the proposed references to ‘ordinary hours’ would raise more questions than they answered.[2] In reply, the Ai Group indicated that it would consider what the other interested parties had put and reconsider its proposed ‘category 1’ variations.

1. On 11 August 2023, the Ai Group advised my chambers that it no longer pressed the ‘category 1’ variations. It filed a draft determination confirming that it now only sought the following variation to clause 10.4:

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).

1. On 20 October 2023, the VACC advised that it did not oppose the Ai Group’s proposed variation. The SDA advised the same on 30 October 2023.

1. In the circumstances, my provisional view is that the Ai Group’s proposed variation to clause 10.4 of the Award should be made pursuant to s 160(1) of the FW Act on the basis that it would resolve uncertainty concerning the form and term of any written agreement under clause 10.4.

1. A draft determination reflecting my provisional view is published together with this decision. Interested parties may respond to my provisional view by 4:00 pm (AEDT) on Thursday, 7 December 2023. If no submissions are received in opposition to my provisional view by that time, the Award will be varied in accordance with the draft determination.

PRESIDENT

[1] Transcript, 7 August 2023 at PN68.

[2] Ibid at PN76.

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