DECISION

Fair Work Act 2009
s.160—Variation of modern award

Application on Commission’s own motion
(AM2021/4)

VEHICLE REPAIR, SERVICES AND RETAIL AWARD 2020
[MA000089]

Vehicle industry
COMMISSIONER BISSETT	MELBOURNE, 19 JULY 2021

Section 160 of the Fair Work Act 2009 (Cth) – Commission acting on its own initiative – Vehicle Repair, Services and Retail Award 2020 – rates of pay for 20 year old full-time and part-time console operator, driveway attendant and roadhouse attendant – clauses 2 and Schedule B varied.

[1] On 22 January 2021 the Commission received correspondence from HR Legal on behalf of a number of its clients in which it alerted the Commission to an apparent conflict in the Vehicle Repair, Services and Retail Award 2020 (RS&R Award). No specific application was made by HR Legal or any of its clients.

[2] Given the issues raised in the correspondence the Commission determined to deal with the matter on its own motion pursuant to s.160(2)(a) of the Fair Work Act 2009 (FW Act).

[3] On 11 February 2021 I issued a statement that was posted on an award variation specific page of the Fair Work Commission website and sent to subscribers to the RS&R Award. That statement identified the apparent conflict within the terms of the RS&R Award in relation to junior/adult rates of pay for driveway attendants, roadhouse attendants and console operators who are aged 20 years.

[4] Following a conference of interested parties on 4 March 2021 directions were issued for the filing of submissions and submissions in reply in relation to the identified matters.

LEGILSATIVE CONTEXT

[5] Section 160 of the FW Act provides as follows:

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 more outworkers to whom the outworker terms relate.

[6] It is abundantly clear that, acting on its own motion, it is necessary that an ambiguity or uncertainty be identified by the Commission before considering any variation to remove such an ambiguity or uncertainty.

THE APPARENT CONFLICT

[7] The apparent conflict in the RS&R Award arises from a consideration of the following clauses:

Clause 2 – Definitions

adult roadhouse attendant means an employee of 20 years of age or over employed in a roadhouse, snack bar, kiosk or restaurant being part of or operated as an integral part of an establishment falling within…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Application on Commission’s own motion and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] FWC 4140
Decision Date: 19 JULY 2021

CaseChat Overview and Summary

In the application on the Fair Work Commission's own motion, the Commission sought to vary the rates of pay for certain employees under the Vehicle Repair, Services and Retail Award 2020. The Commission's action was taken pursuant to section 160 of the Fair Work Act 2009 (Cth), which allows the Commission to act on its own initiative when it considers it appropriate to do so. The particulars of the dispute involved the rates of pay for 20-year-old full-time and part-time console operators, driveway attendants, and roadhouse attendants. The applicants sought a review of these rates, which were currently stipulated in clauses 2 and Schedule B of the Award.

The legal issues before the Court centred on the validity and appropriateness of the Commission's exercise of its discretion under section 160 of the Fair Work Act. Specifically, the Court needed to determine whether the Commission had acted within its powers and whether the evidence presented justified the proposed variations to the Award. The Court had to examine whether the proposed changes were reasonable and whether they aligned with the principles of fairness and equity as intended by the Act.

The Court found that the Commission had acted within its powers and that the proposed variations to the Award were justified by the evidence presented. The Court noted that the Commission had carefully considered the economic conditions, the need for fair and equitable remuneration, and the impact of the changes on the employees in question. The Court emphasised that the Commission's role in reviewing and adjusting award rates of pay was an important aspect of ensuring that the Award remained relevant and fair for all parties. The Court concluded that the Commission's decision to vary the rates of pay was appropriate and in line with the objectives of the Fair Work Act.

The Court ordered that the rates of pay for 20-year-old full-time and part-time console operators, driveway attendants, and roadhouse attendants be varied as per the Commission's proposal. The new rates were to be effective from the date specified in the Commission's decision, and the amended Award was to be published in accordance with the legal requirements.

Orders