Garry Whackett - [2022] FWC 692

[2022] FWC 692

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

s.160—Variation of modern award

Garry Whackett

(AM2022/4)

Manufacturing and associated industries
COMMISSIONER BISSETT	MELBOURNE, 31 MARCH 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.

Mr Garry Whackett has made an application (2022 application) to the Fair Work Commission pursuant to s.160 of the Fair Work Act 2009 (FW Act) seeking a variation to the Manufacturing and Associated Industries and Occupations Award 2020[1] (2020 Award). Mr Whackett seeks a variation to clause 32.14 – Standing by on the grounds that it contains “an error or omission” that leads to an incorrect interpretation and application of the clause.

Clause 32.14 of the 2020 Award states as follows:

32.14 Standing by

Subject to any custom prevailing at an enterprise, 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.

Mr Whackett seeks to vary the clause by deleting the first 8 words of the clause so that it reads:

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.

The application of Mr Whackett was subject to a preliminary conference before me on 23 March 2022. At that conference the Ai Group proposed that the Commission should consider dismissing Mr Whackett’s application on its own motion on the grounds that it has no reasonable prospect of success.

For the reasons that follow I have decided that I should consider dismissing Mr Whackett’s application pursuant to s.587(1)(c) of the FW Act.

LEGISLATIVE PROVISIONS

Division 5 of Part 2-3 of the FW Act relates to the exercise of modern award powers.

Section 157 of the FW Act deals with the powers of the Commission to vary a modern award to achieve the modern awards objective. Section 157 of the FW Act states as follows:

157FWC may vary etc. modern awards if necessary to achieve modern awards objective

(1) The FWC may:

(a)make a determination varying a modern award, otherwise than to vary modern award minimum wages or to vary a default fund term of the award; or

(b) make a modern award; or

(c) make a determination revoking a modern award;

if the FWC is satisfied that making the determination or modern award is necessary to achieve the modern awards objective.

Note 1:Generally, the FWC must be constituted by a Full Bench to make, vary or revoke a modern award. However, the President may direct a single FWC Member to make a variation (see section 616).
Note 2:Special criteria apply to changing…

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 692
Case: [2022] FWC 692
Decision Date

CaseChat Overview and Summary

Garry Whackett has applied to the Fair Work Commission under section 160 of the Fair Work Act 2009 for a variation to the Manufacturing and Associated Industries and Occupations Award 2020 to correct an error in clause 32.14, which deals with standing by. The Ai Group, representing employer interests, submitted that the application has no reasonable prospect of success and should be dismissed. Commissioner Bissett found that the application should be dismissed on the grounds that it has no reasonable prospect of success.

The primary legal issue before the Commission was whether there was an error in clause 32.14 of the 2020 Award that warranted variation. The Commissioner noted that any unfairness in the application of the clause did not amount to an error warranting variation. Additionally, Mr Whackett's application was considered under the wrong section of the Act, and he failed to provide evidence to support his claims. The binding nature of the decision in Otis Elevator also precluded the Commissioner from finding an error in the Award.

The Commissioner found that Mr Whackett's application should be dismissed under section 587(1)(c) of the Fair Work Act 2009 as it had no reasonable prospect of success. The Commissioner issued directions for further submissions and indicated that the matter would be determined on the basis of the material filed if no party sought to be heard.

No specific orders have been made at this stage, pending further submissions and potential hearings. The Commissioner will consider the matter further in light of the submissions received.

Orders