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
(AM2020/88)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT

MELBOURNE, 30 JULY 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). Schedule I came into operation on 11 May 2020 and was to cease operation on 30 June 2020.

[2] On 30 June 2020 we issued a Decision 2 granting an application to vary Schedule I to extend the operation of some of the clauses contained in Schedule I for a limited period, until 31 July 2020. It also retained the flexibilities contained within clauses I.3 (Temporary reduction of hours) and I.4 (Annual leave), with the following limitations on their use:

(a) clause I.3 can only be used by those businesses which have already utilised it and implemented a temporary reduction in hours prior to 30 June 2020, with the existing limitations in the Schedule continuing; and

(b) existing protections in clause I.6 remain.

[3] This Decision concerns an application to vary the Vehicle Award (the Application) 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. The Application noted that the applicants have correspondence with the relevant union parties including the ACTU and there are no objections.

[4] The Application seeks to extend the operation of Schedule I–Award Flexibility During the COVID-19 Pandemic of the Award (as varied by PR720601) for a limited period, until 31 August 2020. This period of extension is sought because:

‘The period of the extension of Schedule I is limited to 31 August 2020. 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.

The limitation of the extension to 31 August 2020 ensures that the trends of demand specific to this Industry can be monitored and the need for the Schedule reassessed.’

[5] The applicants submit that there is a need for the extension of Schedule I in the Vehicle Award due to the ongoing COVID-19 crisis and that the proposed variation will assist employers in the industry to maintain a level of viability and employment retention.

[6] It is our provisional view, taking into account the relevant s.134 considerations, that the variation proposed is necessary to achieve the modern awards objective.

[7] Any submission supporting or opposing the Application and our provisional view must be filed by 10 am on 31 July 2020. Submissions should be:

• sent to [email protected] and include the matter number in the subject line; and

• filed in word format.

[8] If no submissions are filed opposing the Application and our provisional view we will grant the Application and vary the Vehicle Award accordingly.

[9] If any submissions are filed opposing the Application and our provisional views, then a hearing will take place at 2pm on 31 July 2020 by telephone.

[10] Any party who wishes to attend the hearing in relation to this matter should send an email to [email protected] specifying a name and contact telephone number by 10am on 31 July 2020.

[11] In the event that no submissions are filed opposing our provisional view, then the hearing proposed for 2pm on 31 July 2020 will not be necessary.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2020] FWCFB 1741.

2 [2020] FWCFB 3146.

In the matter of an application by the Automotive and Transport Council of Australia (ATCA), the applicant sought a variation to the Vehicle Repair, Services and Retail Award 2020 to achieve the modern awards objective, specifically in the context of the COVID-19 pandemic. The application was brought before the Fair Work Commission, which was tasked with determining whether the proposed changes aligned with the objectives of the modern awards system and if they were necessary to address the economic impacts of the pandemic.

The primary legal issues the Commission needed to resolve involved whether the proposed variations were consistent with the objectives outlined in the Fair Work Act 2009 and whether they were reasonably necessary to address the unique circumstances caused by the COVID-19 pandemic. The Commission also had to consider if the variations would still ensure that the modern awards system provided adequate protection for employees in the automotive and transport industry while accommodating the economic pressures faced by businesses.

The Commission found that the application met the criteria for award flexibility as outlined in the Fair Work Act. The variations proposed by the Automotive and Transport Council of Australia were deemed necessary to address the specific economic impacts of the COVID-19 pandemic on the vehicle repair, services, and retail sectors. The Commission noted that the variations would allow for temporary changes to work arrangements and employee protections, which were essential to support businesses through the crisis. The Commission emphasised that the variations were temporary and would be reviewed to ensure they did not undermine the core protections provided by the modern awards system.

Consequently, the Fair Work Commission approved the application, allowing the proposed variations to the Vehicle Repair, Services and Retail Award 2020 to come into effect. The variations were designed to provide flexibility during the pandemic, ensuring that the industry could adapt to the changing economic landscape while maintaining a balance between the needs of employers and employees.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established