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
(AM2020/91)

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 filed by the Victorian Automobile Chamber of Commerce (VACC), the Motor Trade Association of South Australia Inc, the Motor Traders Association of New South Wales, the Motor Trades Association of Queensland Industrial Organisation of Employers and Ai Group 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 supported by the Australian Chamber of Commerce and Industry (ACCI), the Australian Automotive Dealer Association (AADA) and the Motor Trade Association of Western Australia and was also consented to by the Australian Manufacturing Workers Union (AMWU), the Shop Distributive and Allied Employees Association (SDA) and the Australian Council of Trade Unions (ACTU). Schedule I came into operation on 11 May 2020 and was to cease operation on 30 June 2020.

[2] Since the 11 May 2020 decision, we have granted two applications to extend the operation of Schedule I.

[3] The first application was granted in a decision issued on 30 June 2020 2 which extended the operation of some of the clauses contained in Schedule I for a limited period, until 31 July 2020. It also retained the flexibilities contained within clauses I.3 (Temporary reduction of hours) and I.4 (Annual leave), with the following limitations on their use:

(a) clause I.3 can only be used by those businesses which have already utilised it and implemented a temporary reduction in hours prior to 30 June 2020, with the existing limitations in the Schedule continuing; and

(b) existing protections in clause I.6 remain.

[4] The second application was granted on 31 July 2020 3 and the operation of Schedule I was extended until 31 August 2020.

[5] This Decision concerns a further application to vary and extend the operation of Schedule I in the Vehicle Award (the Application), filed on 27 August 2020 by the VACC, Motor Trade Association of South Australia Incorporated, Motor Traders Association of New South Wales, Motor Trades Association of Queensland Industrial Organisation of Employers and Ai Group (the Applicants). The Application is supported by the ACCI and the AADA. The Application notes that the Applicants have corresponded with the relevant union parties including the ACTU and there are no objections from any relevant union party to the Application.

[6] The Application seeks to extend the operation of Schedule I–Award Flexibility During the COVID-19 Pandemic of the Award for a limited period, until 30 September 2020. The Applicants submit that:

‘This period has been chosen with specific regard to this Industry, as the Industry sees oscillating demand for business from month to month. By way of example, June is historically a relatively busy month (arising from the end of financial year sales) whereas July is historically a quiet month. In August the sales part of the Industry starts to slowly build. Given the prevailing economic circumstances and the restrictions in place in Victoria, it is not clear yet whether that pattern has been replicated in August. It is likely that the Industry has continued to suffer declines in new car sales and remains confronted by other challenges.

The limitation of the extension to 30 September 2020 ensures that the trends of demand specific to this Industry can be monitored and the need for the Schedule reassessed.’

[7] The Applicants submit that the considerations which justified the previous variations to the Vehicle Award remain relevant and there is a need for the extension of Schedule I due to the ongoing COVID-19 crisis. They submit that the proposed variation will assist employers in the industry to maintain a level of viability and employment retention.

[8] It is our provisional view, taking into account the relevant s.134 considerations, that the variation proposed is necessary to achieve the modern awards objective.

[9] Any submission supporting or opposing the Application and our provisional view must be filed by noon on Monday 31 August 2020. Submissions should be:

•  sent to chambers.ross.j@fwc.gov.au and include the matter number in the subject line; and

•  filed in word format.

[10] If no submissions are filed opposing the Application and our provisional view we will grant the Application and vary the Vehicle Award accordingly.

[11] If any submissions are filed opposing the Application and our provisional views, then a hearing will take place at 2pm on 31 August 2020 by telephone.

[12] Any party who wishes to attend the hearing in relation to this matter should send an email to Chambers.Ross.j@fwc.gov.au specifying a name and contact telephone number by noon on 31 August 2020.

[13] In the event that no submissions are filed opposing our provisional view, then the hearing proposed for 2pm on 31 August 2020 will not be necessary.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2020] FWCFB 2367.

 2   [2020] FWCFB 3146.

 3   [2020] FWCFB 4018