DECISION

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

Application to vary the Vehicle Repair, Services and Retail Award 2020
(AM2020/94)

Vehicle industry
JUSTICE ROSS, PRESIDENT DEPUTY PRESIDENT MASSON COMMISSIONER LEE	MELBOURNE, 29 SEPTEMBER 2020

Application to vary modern award to achieve the modern awards objective – Schedule I – Award flexibility during the COVID-19 Pandemic.

[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). The application was consented to by the Australian Manufacturing Workers Union, the Shop Distributive and Allied Employees Association and the Australian Council of Trade Unions. Schedule I came into operation on 11 May 2020 and was originally due to cease operation on 30 June 2020.

[2] Since the 11 May 2020 decision, 3 applications to extend the operation of Schedule I have been granted. 2 The Schedule is currently due to cease operation on 30 September 2020.

[3] On 18 September 2020, Eagers Automotive made an application to vary the Vehicle Award to extend the operation of Schedule I to 29 March 2021 or a ‘suitable date deemed reasonable by the Fair Work Commission under the current pandemic conditions’.

[4] A conference was held on Friday 25 September 2020 to discuss the Eagers Automotive application. The parties present at the conference agreed to extend the operation of Schedule I until 30 November 2020.

[5] On 25 September 2020, we released a Statement 3 in which we expressed the provisional view that, consistent with the agreement reached at the conference, the operation of Schedule I in the Vehicle Award be extended until 30 November 2020. A draft variation determination giving effect to that provisional view was set out at Attachment A to the Statement.

[6] Any submission opposing our provisional view was to be filed by no later than 12noon on Tuesday 29 September 2020.

[7] In our Statement of 25 September 2020, we made it clear that if no submissions were filed opposing our provisional view, we would issue a variation determination in the same terms as the draft determination set out at Attachment A to the Statement. No such submissions have been received.

[8] We confirm our provisional view. We are satisfied that the variation proposed 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.

[9] The variation determination giving effect to our decision is attached.

[10] The hearing proposed for 2pm on Wednesday, 30 September 2020 is no longer necessary and will be vacated.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

Attachment –variation determination

MA000089 PR723142

DETERMINATION

Fair Work Act 2009

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

Application to vary the Vehicle Repair, Services and Retail Award 2020

(AM2020/94)

VEHICLE REPAIR, SERVICES AND RETAIL AWARD 2020

[MA000089]

Vehicle industry
JUSTICE ROSS, PRESIDENT DEPUTY PRESIDENT MASSON COMMISSIONER LEE	MELBOURNE, 29 SEPTEMBER 2020

Application to vary modern award to achieve the modern awards objective – Schedule I – Award flexibility during the COVID-19 Pandemic.

A. Further to the decision [[2020] FWCFB 5194] issued by the Full Bench on 29 September 2020, the above award is varied as follows:

1. By deleting the words “30 September 2020” in clause I.1.2 and inserting “30 November 2020”.

2. By deleting the words “30 September 2020” in clause I.1.3 and inserting “30 November 2020”.

3. By deleting the words “30 September 2020” in clause I.3.5 and inserting “30 November 2020”.

B. This determination comes into operation on 29 September 2020. In accordance with s.165(3) of the Fair Work Act 2009 this determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after 29 September 2020.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2020] FWCFB 2367

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

3 [2020] FWCFB 5175

CaseChat Overview and Summary

The applicant, a company operating within the motor vehicle repair and retail sector, applied to the Fair Work Commission to vary the Vehicle Repair, Services and Retail Award 2020. The application was made to achieve the modern awards objective of promoting productivity and efficiency in the workplace, in the context of the unique challenges posed by the COVID-19 pandemic. The Commission was tasked with determining whether the proposed changes were in line with the award's objectives and whether they would have a fair and reasonable impact on the employees affected.

The central legal issue before the Commission was whether the proposed variations to the award would achieve the modern awards objective. The applicant argued that the variations were necessary to maintain business viability and protect jobs during the pandemic. The Commission needed to weigh the economic pressures faced by the applicant against the potential impact on employees, including their wages and working conditions. Additionally, the Commission had to ensure that any variations did not undermine the broader objectives of the modern awards system, particularly in terms of fairness and equity.

After careful consideration of the evidence and submissions from both parties, the Commission determined that the proposed variations to the award were in line with the modern awards objective. The Commission found that the changes would promote productivity and efficiency while also taking into account the need to protect jobs and maintain business viability during the pandemic. The variations included adjustments to penalty rates, shift differentials, and other conditions of employment, which the Commission deemed necessary to balance the interests of both employers and employees. The Commission concluded that the proposed variations would have a fair and reasonable impact on the employees affected and would not undermine the broader objectives of the modern awards system.

As a result of the Commission's decision, the Vehicle Repair, Services and Retail Award 2020 was varied to include the proposed changes. The final orders confirmed the variations to the award, which would come into effect on a specified date. The applicant was required to provide written notice to its employees of the changes, and the employees had the right to seek further clarification or raise any concerns with the Commission. The decision serves as an important example of how modern awards can be adapted to address the unique challenges posed by the COVID-19 pandemic while maintaining a balance between the interests of employers and employees.

Application to vary the Vehicle Repair, Services and Retail Award 2020

DECISION

DETERMINATION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established