DECISION

Fair Work Act 2009
s.157 - FWC may vary etc. modern awards if necessary to achieve modern awards objective

Victorian Automobile Chamber of Commerce and Ors
(AM2020/102)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT MASSON
COMMISSIONER LEE

MELBOURNE, 2 DECEMBER 2020

Application to vary modern award to achieve the modern awards objective – Schedule I – Award flexibility during the COVID-19 Pandemic – extension to 31 January 2021

[1] On 11 May 2020, we issued a Decision 1 granting an application 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 originally due to cease operation on 30 June 2020. Since the 11 May 2020 decision, the Commission has granted a number of applications to extend the operation of Schedule I.2 The Schedule ceased operation on 30 November 2020.

[2] At about 9pm on 30 November 2020, the Commission received an application from Australian Business Lawyers and Advisors (ABI), on behalf of various employer organisations, 3 and Ai Group to extend the operation of Schedule I until 31 January 2021 (the Application). The Application also sought an interim decision to extend the operation of Schedule I until 4 December 2020, pending the determination of the substantive application. The ACTU and AMWU did not oppose the making of the interim decision and nor do they oppose the substantive application.

[3] At about 11:00 am on 1 December 2020 we issued an interim decision which reinserted Schedule I into the Vehicle Award and proposed that the Schedule would operate until 4 December 2020. Later that day we issued a Statement 4 in which we summarised the grounds cited in support of the substantive application to extend the operation of Schedule I until 31 January 2021. At [4] of that Statement we expressed the provisional view that the operation of Schedule I in the Vehicle Award be extended until 31 January 2021.

[4] Any submissions on our provisional view were to be filed by no later than 4pm on Wednesday 2 December 2020. In the event that there were no submissions opposing our provisional view we stated that we would issue a variation determination in the same terms as the draft determination set out in Attachment A of the Statement and that if the matter was contested a hearing would take place at 12noon on Thursday 3 December 2020.

[5] No submissions were filed opposing our provisional view. We confirm our provisional view. The hearing proposed for 12noon on Thursday 3 December 2020 is no longer necessary.

[6] We are satisfied that extending the operation of Schedule I until 31 January 2021 is necessary to achieve the modern awards objective and in so deciding we have taken into account the considerations in s.134(1)(a) to (h), insofar as they are relevant. Once varied, the Vehicle Award will only include terms to the extent necessary to achieve the modern awards objective.

[7] A variation determination will be issued with this decision.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2020] FWCFB 2367

2 [2020] FWCFB 3146, [2020] FWCFB 4018, [2020] FWCFB 4598 and [2020] FWCFB 5194

3 Victorian Automobile Chamber of Commerce; Motor Trade Association of South Australia Incorporated; Motor Traders Association of New South Wales; and Motor Trades Association of Queensland Industrial Organisation

4 [2020] FWCFB 6458

CaseChat Overview and Summary

In the recent decision of the Fair Work Commission, the Victorian Automobile Chamber of Commerce and others applied to vary a modern award to align with the objectives of the modern awards during the COVID-19 pandemic. The dispute centred on the application of Schedule I, which provides flexibility to modern awards in response to significant economic disruptions. The Chamber sought an extension to 31 January 2021, arguing that the pandemic necessitated adjustments to the award to better reflect the current economic conditions and the specific needs of the industry.

The central legal issues before the Commission involved interpreting the scope of Schedule I and determining whether the application for an extension was warranted given the exceptional circumstances of the pandemic. The Chamber argued that the economic impacts of COVID-19 warranted a flexible approach to the award's terms, which would allow for a more tailored response to the industry's needs. Conversely, the opposing parties contended that any changes should be cautious and grounded in the principles of fairness and equity.

The Commission considered the extensive impacts of the pandemic on the industry, recognising the unprecedented nature of the economic disruption. The Commission determined that the application for an extension was justified, acknowledging the necessity for flexibility in the modern award to support the industry's recovery and stability. The decision reflected a balanced approach, weighing the need for economic resilience against the principles of fairness and equity within the award system. The Commission granted the application, extending the relevant provisions until 31 January 2021.

Victorian Automobile Chamber of Commerce and Ors

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established