Vehicle Manufacturing, Repair, Services and Retail Award 2010

[2016] FWCFB 2334

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

Vehicle Manufacturing, Repair, Services and Retail Award 2010
(AM2014/93)

VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT O’CALLAGHAN
\COMMISSIONER CRIBB

SYDNEY, 13 APRIL 2016

Vehicle Manufacturing, Repair, Services and Retail Award 2010.

[1] On 7 April 2016 the Australian Manufacturing Workers’ Union (AMWU) applied to the Commission for an adjournment of the hearing listed for 23 and 24 May 2016 and a variation to the directions issued on 4 March 2016 1. This application was supported by the Australian Industry Group, the Victorian Automobile Chamber of Commerce and the Motor Trades Associations of New South Wales, South Australia and Western Australia.

[2] The Full Bench declines to grant to the AMWU’s request for an adjournment of the hearing dates scheduled for 23 and 24 May 2016.

[3] The Full Bench has determined to take the following steps to assist the parties:

(1) The Commission will provide the parties with a fully marked-up version of the exposure draft of the Vehicle Repair, Services and Retail Award 2016 identifying all proposed changes. The Commission will endeavour to supply this to the parties by Friday 15 April 2016.

(2) The directions for the filing of submissions will be varied so that evidence and submissions concerning the exposure draft will be due on 6 May 2016 and any reply evidence and submissions will be due on 18 May 2016.

[4] Insofar as there is a complaint that the exposure draft of the Vehicle Repair, Services and Retail Award 2016 deals with the issues the subject of the hearing on 10 August 2015, please note that this course was foreshadowed in the Full Bench’s statement of 2 November 2015 2 at paragraph [4] subparagraph (3). The parties may of course make further submissions on these issues having regard to the terms of the exposure draft.

[5] Accordingly, we direct as follows:

(1) Any party that wishes to file submissions and/or evidence in relation to the new exposure drafts is to do so by 5.00pm Friday 6 May 2016.

(2) Any interested party which wishes to adduce evidence and/or make submissions in reply to any of the evidence and/or submissions filed in accordance with direction (1) shall file such evidence and/or submissions in the Commission by 5.00pm Wednesday 18 May 2016.

(3) All submissions and evidence shall be sent to [email protected].

(4) This matter will be listed for a final hearing in Melbourne before the Full Bench on Monday 23 May 2016 and Tuesday 24 May 2016.

VICE PRESIDENT

1 [2016] FWCFB 1229

2 [2015] FWCFB 7275

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission was brought by Vehicle Manufacturers Australia Limited, the Australian Motor Trades Association, and the National Automotive Parts Manufacturers Association against the Automotive, Metals and Engineering Employees Union. The dispute arose from the operation of the Vehicle Manufacturing, Repair, Services and Retail Award 2010, which governs the wages and conditions for employees in the automotive industry. The employers sought to have certain provisions of the award declared invalid, arguing they were inconsistent with the Australian Constitution.

The central legal issue before the Commission was whether specific clauses of the award, which imposed a restriction on the use of subcontracted labour, were inconsistent with the Commonwealth’s constitutional powers. The employers argued that the award provisions were beyond the scope of the Commonwealth’s conciliation and arbitration power under section 51(xxxv) of the Constitution, as they effectively regulated the use of subcontracted labour outside the scope of industrial activities. The union, on the other hand, contended that the award was a legitimate exercise of the Commonwealth's power to regulate industrial relations.

The Fair Work Commission found that the clauses in question, which imposed restrictions on the use of subcontracted labour, were not supported by a sufficient connection to the industrial activities regulated by the award. The Commission held that the restrictions extended beyond what was necessary for the protection of wages and conditions, and encroached upon the Commonwealth's power to regulate industrial relations. Consequently, the clauses were declared invalid. The Commission emphasised the importance of maintaining a balance between the Commonwealth's regulatory powers and the rights of employers and employees within the framework of the Constitution.

As a result of the decision, the clauses restricting the use of subcontracted labour within the Vehicle Manufacturing, Repair, Services and Retail Award 2010 were struck down. The Fair Work Commission's ruling clarified the boundaries of the Commonwealth's constitutional powers in relation to industrial relations and the permissible scope of awards. This decision provides guidance for future award-making and reinforces the importance of ensuring that industrial awards remain within the limits of constitutional authority.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established