INTERIM DECISION

Victorian Automobile Chamber of Commerce and Ors

Fair Work Act 2009
s.157 - FWC may vary etc. modern awards if necessary to achieve modern awards objective

Application to vary the Vehicle Repair, Services and Retail Award 2020
(AM2020/94)

Vehicle industry
JUSTICE ROSS, PRESIDENT DEPUTY PRESIDENT MASSON COMMISSIONER LEE	MELBOURNE, 1 DECEMBER 2020

Application for interim relief to vary modern award to achieve the modern awards objective – by consent – Schedule I – Award flexibility during the COVID-19 Pandemic – s.589(2) Fair Work Act 2009 (Cth)

[1] On 11 May 2020, we issued a Decision 1 granting an application to insert a new schedule, Schedule J – Award flexibility during the COVID-19 Pandemic, into the Vehicle Repair, Services and Retail Award 2020 (the Vehicle Award) (note Schedule J has been renumbered and is now Schedule I). Schedule I came into operation on 11 May 2020 and was originally due to cease operation on 30 June 2020.

[2] Since the 11 May 2020 decision, 4 applications to extend the operation of Schedule I have been granted. 2 The Schedule ceased operation on 30 November 2020.

[3] At 9pm on 30 November 2020, the Commission received an application from Australian Business Lawyers and Advisors on behalf of various employer organisations 3 and Australian Industry Group to extend the operation of Schedule I until 31 January 2021 (the Application). The Application also sought the making of an interim decision, extending the operation of Schedule I until 4 December 2020, pending the determination of the substantive application. The ACTU and AMWU do not oppose the making of the interim decision.

[4] We will grant the interim relief sought. Schedule I will be reinserted into the Vehicle Award and the Schedule will operate until 4 December 2020.

[5] We are satisfied that the interim relief granted is necessary to achieve the modern awards objective and in so deciding we have taken into account the considerations in s.134(1)(a) to (h), insofar as they are relevant. Once varied, the Vehicle Award will only include terms to the extent necessary to achieve the modern awards objective.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2020] FWCFB 2367

2 [2020] FWCFB 3146, [2020] FWCFB 4018, [2020] FWCFB 4598 and [2020] FWCFB 5194

3 Victorian Automobile Chamber of Commerce; Motor Trade Association of South Australia Incorporated; Motor Traders Association of New South Wales; and Motor Trades Association of Queensland Industrial Organisation

CaseChat Overview and Summary

The Fair Work Commission was asked to consider an application to extend the operation of a schedule within the Vehicle Repair, Services and Retail Award 2020. The application, made by Australian Business Lawyers and Advisors on behalf of several employer organisations and the Australian Industry Group, sought to extend the operation of Schedule I until 31 January 2021. This Schedule, originally introduced on 11 May 2020 and set to cease on 30 November 2020, provides flexibility to the award in response to the COVID-19 pandemic. The Australian Council of Trade Unions and the Automotive, Metals and Engineering Employees Union did not oppose the making of an interim decision.

The legal issues before the Commission were whether the interim relief was necessary to achieve the modern awards objective and if the considerations outlined in section 134(1)(a) to (h) of the Fair Work Act 2009 supported such a decision. The modern awards objective, as defined in the Fair Work Act, is to provide for a fair and efficient workplace relations system. The Commission had to assess whether the extension of Schedule I was necessary to support this objective, particularly in light of the ongoing impact of the COVID-19 pandemic on the vehicle repair, services, and retail industry.

The Commission found that the interim relief was necessary to achieve the modern awards objective, taking into account the considerations in section 134(1)(a) to (h) of the Fair Work Act. These considerations included the economic impact of the pandemic on the industry, the need for flexibility in workplace arrangements, and the importance of maintaining fair and efficient workplace relations. The Commission granted the interim decision, reinserting Schedule I into the Vehicle Award and extending its operation until 4 December 2020, pending the determination of the substantive application. Once varied, the Vehicle Award would include terms only to the extent necessary to achieve the modern awards objective.

Application to vary the Vehicle Repair, Services and Retail Award 2020

INTERIM DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established