Gary Whackett

[2022] FWC 367

[2022] FWC 367

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

s.160—Variation of modern award

Gary Whackett

(AM2022/4)

Manufacturing and associated industries
COMMISSIONER BISSETT	MELBOURNE, 22 FEBRUARY 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 – standby – listed for conference.

1. An application has been made to vary the Manufacturing and Associated Industries and Occupations Award 2020 (MAI Award) pursuant to s.160 of the Fair Work Act 2009 (FW Act). The application has been made by Mr Garry Whackett. Mr Whackett sees an amendment to clause 32.14 of the MAI Award as follows:

32.14 Standing by

Subject to any custom prevailing at an enterprise, wWhere 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.

1. A copy of the application and associated submissions were filed with the Commission on 15 February 2022. Mr Whackett subsequently filed an amended submission on 21 February 2022.

1. I have been allocated this matter to deal with pursuant to s.616(3D)(a) of the Act, which provides that the President may direct a single Member to perform a function or exercise a power under s.160 of the Act varying a modern award.

Background

1. Mr Whackett made a similar application to vary the MAI Award in 2019 (the 2019 application). That application was dismissed by me in a decision issued on 26 November 2020. In rejecting the 2019 application the Commission found:

“[51] I am not satisfied that the Applicant has identified any ambiguity or uncertainty in the wording of the clause.

[52] I appreciate that the Applicant takes issue not with the words in clause but rather the interpretation of those words as exemplified in the FWO advice and the decision in Otis Elevators but this does not create ambiguity or uncertainty.

[53] The Applicant’s issue goes to how the clause is applied and his strong belief that employers claim the existence of a custom so as to avoid an obligation to pay an employee who is required to stand by. Whilst this may be the view of the Applicant there is no direct evidence before the Commission that this is what does occur. Even if such evidence was put and the concern legitimate that does not suggest any ambiguity or uncertainty in the clause but rather possibly an inappropriate application of the clause.

[54] While the issues raised by the Applicant may be valid the resolution of these is through the disputes settling procedures of the MAI Award or through some alternative application to vary the MAI Award. Any such application however cannot be based on supposition but must be founded on strong evidence that can be tested by others who may have an interest in the matter.

[55] For these reasons I am not satisfied that any ambiguity or uncertainty has been identified in relation to the clause. It is not susceptible to more than one meaning and for this reason the application to vary the clause must be rejected.

[56] I would observe that the Applicant’s critique of the decision of the Full Court in Otis Elevators does not assist his case. The Applicant has a strong view as to the deficiencies in the clause in the MAI Award. That the Full Court has a contrary view does not make that decision unsound and does not create the ambiguity or uncertainty necessary to allow a consideration of a variation to the clause.

[57] I acknowledge the apparent unfairness in the clause as identified by the AMWU but this is not a basis for a finding of ambiguity or uncertainty.

[58] The Applicant has remained committed in his pursuit of this issue and is to be commended for his willingness to argue his case but s.160 of the FW Act is not the means by which the fairness of the existing provision can or should be assessed.

[59] The failure to identify any ambiguity or uncertainty in the clause means that the jurisdiction of the Commission to vary the clause has not been made out and the application with respect to the first variation must be dismissed.”[1]

The 2022 application

1. The 2022 application relies on similar grounds to those relied on by Mr Whackett in the 2019 application and are set out in his submissions.

Conference

1. The Commission intends to hold a preliminary conference in relation to this application as follows:

   2:00 pm
   Wednesday 23 March 2022
   By telephone

1. A Notice of Listing will be issued separately.

1. Any party interested in participating should provide contact details to [email protected] by 4:00pm on Monday, 21 March 2022.

1. Any preliminary submissions that any interested party chooses to make should be sent to [email protected].

1. All written material received will be posted to a dedicated website.

COMMISSIONER

[1] [2020] FWC 6223.

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