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
(AM2020/102)

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). 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 4 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] Earlier today, we issued an interim decision 4 which reinserted Schedule I into the Vehicle Award until 4 December 2020. At about 1.00pm today ABI filed grounds in support of their substantive application to extend the operation of Schedule I until 31 January 2021. The grounds in support canvass the background to the pandemic and the impact on employees and employers covered by the Vehicle Award, in particular:

‘The underlying economic conditions and challenges facing the Industry, which provided the context of the Full Bench decisions, continue to exist. Despite an easing of restrictions by governments, the Industry continues to experience acute challenges, which commenced prior to, but which have been exacerbated by, the advent of COVID-19 and consequent government restrictions.

The Application seeks a selective extension of Schedule I of the Award, as varied on 29 September 2020, with limited duration.

The period of the extension of Schedule I is limited to 31 January 2021. This period has been chosen with specific regard to this Industry, as the Industry sees oscillating demand for business from month to month and late December/early January is traditionally subject to a temporary close-down period.

Given the current economic uncertainty in the industry, the limitation of the extension to 31 January 2021 ensures that the trends of demand specific to this Industry can be monitored and the need for the Schedule appropriately reassessed.’ 5

[4] It is our provisional view that the operation of Schedule I in the Vehicle Award be extended until 31 January 2021. A draft variation determination giving effect to that provisional view is set out at Attachment A.

[5] Any submission opposing our provisional view must be filed by no later than 4pm on Wednesday 2 December 2020. Submissions are to be sent to chambers.ross.j@fwc.gov.au.

[6] If no submissions are filed opposing our provisional view, we will issue a variation determination in the same terms as the draft determination at Attachment A.

[7] If any submissions are filed opposing our provisional view then a hearing will take place at 12noon on Thursday 3 December 2020, by telephone. Parties wishing to appear at the hearing are to provide the name, direct number and organisation by 10am on Thursday 3 December 2020 to chambers.ross.j@fwc.gov.au. If no submissions are filed opposing our provisional view then the hearing will not be necessary and will be vacated.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR725043>

Attachment A – draft variation determination

MA000089  PRXXXXXX

DETERMINATION

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/XX)

VEHICLE REPAIR, SERVICES AND RETAIL AWARD 2020
[MA000089]

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

A. Further to decision [[2020] FWCFB XXXX] issued by the Full Bench on XX December 2020, the above award is varied as follows:

1. By deleting the words “until 4 December 2020” in clause I.1.2 in Schedule I Award Flexibility During the COVID-19 Pandemic, and replacing them with the words “until 31 January 2021”.

2. By deleting the words “on 4 December 2020” in clause I.1.3 and replacing them with the words “on 31 January 2021”.

3. By deleting the words “before 4 December 2020” in clause I.3.5 and replacing them with the words “before 31 January 2021”.

B. This determination comes into effect on XX December 2020. In accordance with s.165(3) of the Fair Work Act 2009 this determination does not take effect until the start of the first full pay period that starts on or after XX December 2020.

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 6449

 5   ABI submission 1 December 2020 at 22 and 26-28