Garry Whackett - [2022] FWC 1527

[2022] FWC 1527

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.160—Variation of modern award

Garry Whackett

(AM2022/4)

Manufacturing and associated industries
COMMISSIONER BISSETT	MELBOURNE, 23 JUNE 2022

Application to vary a modern award to remove ambiguity or uncertainty or correct error –Manufacturing and Associated Industries and Occupations Award 2020 – clause 32.14 – Standing by.

On 16 February 2022 Mr Garry Whackett made an application to the Fair Work Commission pursuant to s.160 of the Fair Work Act 2009 (FW Act) to vary the Manufacturing and Associated Industries and Occupations Award 2020 (2020 Award) to remove ambiguity or uncertainty (the 2022 Application).

Mr Whackett seeks to vary clause 32.14 of the 2020 Award to delete the first 8 words in clause 32.14 as follows:

32.14 Standing by

~~Subject to any custom prevailing at an enterprise, w~~Where an employee is required regularly to hold themselves in readiness to work after ordinary hours, the employee must be paid standing by time at the employee’s ordinary hourly rate for the time they are standing by.

This is the second time Mr Whackett had made an application pursuant to s.160 of the FW Act to essentially achieve the same outcome albeit the first application he made was to vary the Manufacturing and Associated Industries and Occupations Award 2010 (2010 Award). This earlier application was made in 2019 (the 2019 Application) and was subject to a decision (2020 Decision)[1] in which I dismissed the 2019 Application.

On 22 February 2022 I issued a statement[2] in relation to the 2022 Application where I outlined the background in relation to the 2019 Application and the reasons given in the 2020 Decision as to why I dismissed the 2019 Application.

Following a Mention in relation to the 2022 Application I issued a further statement on 31 March 2022[3]. In that statement I set out the background to both applications made by Mr Whackett, my findings in relation to the 2019 Application and matters associated with this, the 2022 Application.

In that statement I indicated that I was considering dismissing Mr Whackett’s application on the grounds that it had no reasonable prospects of success and set out three reasons as to why I was of such a mind. Those reasons are:

[28] Firstly, to the extent Mr Whackett says that the 2020 Award does not meet the modern awards objectives that is a matter to be prosecuted under s.158 of the FW Act and not s.160 as this application does. When this was brought to Mr Whackett’s attention during the preliminary conference his response was to continue with his current application and, if it fails, then perhaps move on to some other type of application. In this respect it is not an efficient use of Commission time and resources, or those of others with an interest in the 2020 Award to have to continue to deal with applications as Mr Whackett moves through various section of the FW Act.

[29] Second Mr Whackett…

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.

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Details

AGLC: Garry Whackett [2022] FWC 1527
Case: [2022] FWC 1527
Decision Date: 23 JUNE 2022

CaseChat Overview and Summary

The applicant, Mr. Whackett, applied to the Fair Work Commission (FWC) to vary clause 32.14 of the Manufacturing and Associated Industries and Occupations Award 2020 (2020 Award). The application was made pursuant to section 160 of the Fair Work Act 2009 (FW Act). Mr. Whackett sought to vary clause 32.14 to remove ambiguity or uncertainty or correct error. This is the second time Mr. Whackett had made an application to vary the award, the first having been dismissed in 2020. The primary issue for the court was whether Mr. Whackett's application had any reasonable prospects of success. The court found that the application did not have reasonable prospects of success because there was no ambiguity, uncertainty or error in clause 32.14. The court noted that the FWC's power to vary an award under section 160 of the FW Act is only enlivened once ambiguity, uncertainty or an error is identified. The court further found that the modern awards objective does not require that an employee must be entitled to additional remuneration for work performed. The court also found that the decision of the Full Court of the Industrial Relations Court of Australia in Otis Elevator could not be ignored. The court dismissed the application pursuant to section 587(1)(c) of the FW Act on the grounds that it had no reasonable prospect of success. The court observed that Mr. Whackett's dissatisfaction with the standing by prescription in the 2020 Award was not demonstrative of error, nor had he identified any ambiguity or uncertainty in how the provision operates. The court acknowledged the concerns Mr. Whackett had with clause 32.14 of the 2020 Award but found that the application made by Mr. Whackett that the 2020 Award be varied pursuant to section 160 of the FW Act was not the means by which his desired ends might be achieved. The court found that the application was dismissed and an order to this effect would be issued with the decision.

Orders