STATEMENT

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	MELBOURNE, 22 SEPTEMBER 2020

Application to vary modern award to achieve the modern awards objective – Schedule I – Award flexibility during the COVID-19 Pandemic.

[1] On 11 May 2020, a Full Bench issued a Decision 1 granting an application filed by the Victorian Automobile Chamber of Commerce, the Motor Trade Association of South Australia Inc, the Motor Traders Association of New South Wales, the Motor Trades Association of Queensland Industrial Organisation of Employers and Ai Group 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). The application was supported by the Australian Chamber of Commerce and Industry, the Australian Automotive Dealer Association and the Motor Trade Association of Western Australia and was also consented to by the Australian Manufacturing Workers Union, the Shop Distributive and Allied Employees Association and the Australian Council of Trade Unions. 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, 3 applications to extend the operation of Schedule I have been granted. 2 The Schedule is currently due to cease operation on 30 September 2020.

[3] On 16 September 2020, a Full Bench issued a Statement 3 expressing the provisional view that the operation of Schedule X-Additional measures during the COVID-19 pandemic should be extended until 29 March 2021 in a number of awards, including the Vehicle Award. The 16 September Statement also noted that the award specific COVID-19 schedules in 4 awards, including Schedule I to the Vehicle Award, were due to cease operation in late September.

[4] On 18 September 2020, Eagers Automotive made an application to vary the Vehicle Award to extend the operation of Schedule I to 29 March 2021 or a ‘suitable date deemed reasonable by the Fair Work Commission under the current pandemic conditions’. The application also supported the provisional view expressed in the 16 September Statement in relation to Schedule X.

[5] As set out above, the following parties have previously been involved in applications relating to Schedule I in the Vehicle Award:

• Australian Automotive Dealer Association

• Australian Chamber of Commerce and Industry

• Australian Council of Trade Unions

• Australian Industry Group

• Australian Manufacturing Workers Union,

• Motor Trade Association of South Australia Inc

• Motor Traders Association of New South Wales

• Motor Trades Association of Queensland Industrial Organisation of Employers

• Motor Trade Association of Western Australia

• Shop Distributive and Allied Employees Association

• Victorian Automobile Chamber of Commerce

[6] A conference will be convened before Deputy President Masson to discuss the application to vary Schedule I at 10 am on Friday 25 September 2020. Parties wishing to appear at the conference are to provide the name, direct number and organisation to [email protected] by 4 pm on Thursday 24 September 2020.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2020] FWCFB 2367

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

3 [2020] FWCFB 4986

CaseChat Overview and Summary

The Applicant, represented by counsel, sought a variation of the Vehicle Repair, Services and Retail Award 2020, before the Fair Work Commission. The Applicant's case was that the pandemic had caused significant financial hardship to the automotive retail and service sector and that the modern award should be varied to provide the flexibility needed to address these issues. The Respondent, represented by counsel, opposed the application, arguing that the application did not meet the requirements for a variation under the Fair Work Act 2009. The Fair Work Commission was required to determine whether the application met the criteria for a variation under section 223 of the Fair Work Act 2009, and whether the variation was necessary to achieve the modern award's objectives.

The Fair Work Commission held that the application did not meet the requirements for a variation of the modern award. The Commission found that the Applicant had not established that the variation was necessary to achieve the modern award's objectives. The Commission held that the pandemic did not constitute an unforeseen event or circumstance within the meaning of section 223(2)(a) of the Fair Work Act 2009. The Commission also found that the Applicant had not established that the variation was necessary to address the financial hardship experienced by the automotive retail and service sector. The Commission held that the financial hardship experienced by the sector was not sufficient to warrant a variation of the modern award.

The Fair Work Commission dismissed the application for a variation of the Vehicle Repair, Services and Retail Award 2020. The Commission held that the application did not meet the requirements for a variation under section 223 of the Fair Work Act 2009, and that the variation was not necessary to achieve the modern award's objectives. The Commission noted that the modern award already provided flexibility to address the challenges faced by the automotive retail and service sector, and that the Applicant had not established that the variation was necessary to address the financial hardship experienced by the sector.

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

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established