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

[2020] FWCFB 4598

[2020] FWCFB 4598

FAIR WORK COMMISSION

DECISION

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
(AM2020/91)

Vehicle industry
JUSTICE ROSS, PRESIDENT DEPUTY PRESIDENT MASSON COMMISSIONER LEE	MELBOURNE, 31 AUGUST 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 we issued a Decision 1 granting an application filed by the Victorian Automobile Chamber of Commerce (VACC), 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 (ACCI), the Australian Automotive Dealer Association (AADA) and the Motor Trade Association of Western Australia and was also consented to by the Australian Manufacturing Workers Union (AMWU), the Shop Distributive and Allied Employees Association (SDA) and the Australian Council of Trade Unions (ACTU). Schedule I came into operation on 11 May 2020 and was to cease operation on 30 June 2020.

[2] Since the 11 May 2020 decision, we have granted two applications to extend the operation of Schedule I. 2 The Schedule is currently due to cease operation on 31 August 2020.

[3] On 27 August 2020 a further application to vary and extend the operation of Schedule I was filed by the VACC, Motor Trade Association of South Australia Incorporated, Motor Traders Association of New South Wales, Motor Trades Association of Queensland Industrial Organisation of Employers and Ai Group (the Applicants). The Application is supported by the ACCI and the AADA.

[4] The Application sought to extend the operation of Schedule I–Award flexibility during the COVID-19 Pandemic of the Vehicle Award for a limited period, until 30 September 2020. The Applicants submitted that:

‘This period has been chosen with specific regard to this Industry, as the Industry sees oscillating demand for business from month to month. By way of example, June is historically a relatively busy month (arising from the end of financial year sales) whereas July is historically a quiet month. In August the sales part of the Industry starts to slowly build. Given the prevailing economic circumstances and the restrictions in place in Victoria, it is not clear yet whether that pattern has been replicated in August. It is likely that the Industry has continued to suffer declines in new car sales and remains confronted by other challenges.

The limitation of the extension to 30 September 2020 ensures that the trends of demand specific to this Industry can be monitored and the need for the Schedule reassessed.’

[5] In a decision 3 issued on 28 August 2020 we expressed the provisional view, taking into account the relevant s.134 considerations, that the variation proposed was necessary to achieve the modern awards objective. Any party opposing the provisional view was directed to file submissions by 12noon on Monday 31 August 2020.

[6] In our decision of 28 August 2020, we made it clear that if no submissions were filed opposing our provisional view, then we would vary the Vehicle Award accordingly. No such submissions were filed. We confirm our provisional view.

[7] We are satisfied that the variation proposed 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.

[8] Accordingly, we will grant the application and vary the Vehicle Award. The Award variation determination will be issued with this decision. The hearing proposed for 2pm on Monday 31 August 2020 is vacated.

[9] A copy of the variation determination is set out at Attachment A.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR722281>

ATTACHMENT A

Attachment A

MA000089  PR722261

DETERMINATION

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

Victorian Automobile Chamber of Commerce and Ors

(AM2020/91)

VEHICLE REPAIR, SERVICES AND RETAIL AWARD 2020

MA000089

Vehicle industry
JUSTICE ROSS, PRESIDENT DEPUTY PRESIDENT MASSON COMMISSIONER LEE	MELBOURNE, 31 AUGUST 2020

Application to vary the Vehicle Repair, Services and Retail Award 2020 – Schedule I – Award flexibility during the COVID-19 Pandemic.

A Further to decision [[2020] FWCFB 4598] issued by the Full Bench on 31 August 2020, the above award is varied as follows:

1. By deleting the words “31 August 2020” in clause I.1.2 and inserting “30 September 2020”.

2. By deleting the words “31 August 2020” in clause I.1.3 and inserting “30 September 2020”.

3. By deleting the words “31 August 2020” in clause I.3.5 and inserting “30 September 2020”.

B This determination comes into operation on 31 August 2020. In accordance with s.165(3) of the Fair Work Act 2009 this determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after 31 August 2020.

PRESIDENT

Printed by authority of the Commonwealth Government Print

 1   [2020] FWCFB 2367.

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

 3   [2020] FWCFB 4556