While the issues raised by the Applicant may be valid the resolution of these is through the disputes settling procedures of the MAI Award or through some alternative application to vary the MAI Award. Any such application however cannot be based on supposition but must be founded on strong evidence that can be tested by others who may have an interest in the matter.

For these reasons I am not satisfied that any ambiguity or uncertainty has been identified in relation to the clause. It is not susceptible to more than one meaning and for this reason the application to vary the clause must be rejected.

I would observe that the Applicant's critique of the decision of the Full Court in Otis Elevators does not assist his case. The Applicant has a strong view as to the deficiencies in the clause in the MAI Award. That the Full Court has a contrary view does not make that decision unsound and does not create the ambiguity or uncertainty necessary to allow a consideration of a variation to the clause.

[6] On 15 February 2022, Mr Whackett lodged an application to vary clause 32.14 of the Manufacturing Award by removing the opening proviso (matter AM2022/4). The application was said by him to be brought under s 160 on the basis that the variation was necessary to '...correct an error or omission that had led to an absurdity in the interpretation and application of clause 32.14...'. However, as this application progressed, Mr Whackett also contended that the variation he sought was necessary to ensure that the Manufacturing Award met the requirement in the modern awards objective that the Commission must make provisions for additional payments for employees engaged to work unsociable hours.

[7] Mr Whackett's application was again allocated to Commissioner Bissett for determination. On 23 June 2022, the Commissioner issued a decision dismissing the application under s 587(1)(c) on the grounds that it had no reasonable prospect of success: [2022] FWC 1527. The Commissioner again found that Mr Whackett had not demonstrated any ambiguity, uncertainty or error, and said (at [31]):

Mr Whackett's dissatisfaction with the operation of clause 32.14 of the 2020 Award is not an identification of ambiguity or uncertainty or of an error in how the clause operates.

[8] The Commissioner also observed at [41]:

I acknowledge the submissions of [the Australian Industry Group] in relation to the right of parties to expect some finality in litigation of the same matter. Whilst Mr Whackett's 2022 Application is not in precisely the same terms as his 2019 Application it is so similar to not being of any difference in substance in relation to the standing by provision. Further, applications to vary the [Manufacturing] Award without some case of substance will not advance Mr Whackett's cause and may be dismissed with a far lesser opportunity for Mr Whackett to put submissions or argue his case.

[9] At the initial directions hearing for Mr Whackett's current application on 14 October 2025, appearances were entered by the Australian Industry Group (Ai Group), Australian Business Industrial and Business NSW (ABI), the Australian Manufacturing Workers' Union (AMWU), the United Workers' Union (UWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Australian Workers' Union. The Ai Group and ABI opposed the application. The unions all stated that they supported the application 'in principle'. However, no party indicated that it was prepared to file any substantive submissions or evidence in the matter, and the AMWU in particular positively stated that it did not intend to file any evidence.

[10] Following this hearing, the President directed Mr Whackett to file an outline of submissions in support of his application addressing the relevant requirements of the FW Act together with any evidence upon which he sought to rely, by 25 November 2025. In response to this direction, Mr Whackett filed a short submission on 24 November 2025.

[11] A report-back/directions hearing was then conducted on 2 December 2025 before the President. The Ai Group, ABI, the AMWU, the UWU and the CEPU appeared. Mr Whackett confirmed that he had filed all the material upon which he sought to rely. The union parties appearing indicated that they intended to file submissions in support of the application (in the CEPU's case, 'something in support': Transcript, 2 December 2025 PN99) but would not be filing any evidence. The Ai Group made an application for the dismissal of the application under s 587(1)(c) on the basis that the application 'has no real prospects of success': Transcript, 2 December 2025 PN107. ABI supported this application. Mr Whackett briefly responded to the application. At the end of this hearing, the President reserved any decision concerning the Ai Group's application. Mr Whackett lodged a further unsolicited written submission on 23 January 2026 and a 'more polished' [his words] version of the same submission on 27 January 2026. We have taken these submissions into account.

[12] On 2 February 2026, the President referred the matter to this Full Bench for determination.

[13] For the reasons which follow, we have decided that Mr Whackett's application has no reasonable prospects of success and should be dismissed pursuant to s 587(1)(c) of the FW Act.

[14] Mr Whackett's case in support of his application appears to boil down to two main propositions:

(1) Section 134(1)(da)(ii) of the FW Act establishes an obligation for an employer to pay an employee while engaged on 'standby'.

(2) The proviso attached to the beginning of clause 32.14, as interpreted by the Fair Work Ombudsman (FWO), means that it fails to provide additional remuneration for employees working unsocial, irregular or unpredictable hours. The variation sought is necessary to achieve the modern awards objective in s 134(1).

[15] As the second proposition indicates, there is a residual interpretational element to Mr Whackett's case. In his submissions of 24 November 2025, Mr Whackett submits:

...[clause 32.14] is in compliance with modern award objectives as stated in the Fair Work Act 2009. It does make provision for payment for the time an employee is engaged on Standby.

Somehow, the obligation to pay an employee for being engaged on Standby has become invalid and the exception in the award has become normalized to become the operative part of the clause as interpreted by the FWO and published in Fairwork Ombudsman K600586 quoted below.

The Manufacturing Award includes a payment for standing by. This applies where an employee is required regularly to stand by in readiness to work after their ordinary hours have finished. The employee gets paid standing by time at their ordinary hourly rate for the time they are standing by.

This payment doesn't apply if there's a 'custom prevailing' at the workplace for employees to regularly be standing by.

'Custom prevailing' means that standing by is a routine, regular and expected part of the work.

The Fair Work Act 2009 makes payment for being engaged on Standby mandatory. The advice from FWO in K600586 contradicts the Fair Work Act. The advice in K600586 encourages and misleads employers to ignore their obligation under the Fair Work Act 2009. There is nothing in the Fair Work Act that makes payment of wages for being engaged on standby conditional.

[16] Mr Whackett's alternative to the FWO's interpretation is that the provision, which he identifies as originating in the Consolidated Metal Trades Award made in 1937, was only intended to preserve customs prevailing at that time (i.e. in 1937), and not any practices developed since. In this sense, he seeks to take issue with Otis Elevators.

[17] At the hearing on 2 December 2025, the Ai Group submitted that the application had no reasonable prospects of success because:

• no evidence had been presented, or would be, as to why the proposed variation was necessary to achieve the modern awards objective;

• the application was based on a fundamental misunderstanding of s 134, which does not create any payment for standby as suggested by Mr Whackett; and

• the application disregarded Otis Elevators, which considered a similar standby clause and rejected the proposition that the exception only applied to customs pre-dating the inclusion of the standby provision in the award.

[18] In his submission of 23 January 2026, apparently in response to the Ai Group's submission, Mr Whackett said:

There appears to be some misunderstanding about the nature of my request to amend [the Manufacturing Award].

There was a question by the AIG as to whether I would be submitting more evidence to support my amendment and I said "No". AIG suggested that a significant amount of evidence would be required to make my argument.

The reality of my claim is just to seek an interpretation by the FWC of two pieces of legislation that appear to contradict each other. I'm not seeking to make any amendment to lobby for an outcome to change entitlements, just an interpretation by the Commission of two contradictory pieces of legislation that are already in force. Further, the amendment was to remove the section of [the Manufacturing Award] that does not meet the requirements of the Fair Work Act 2009 and thereby eliminate that contradiction in legislation.

[19] Mr Whackett's application seeks that the Commission exercise the power in s 157 to vary modern awards. Other than for variations to minimum wages or default superannuation fund terms, s 157(1) relevantly requires that the Commission must be satisfied that a variation is necessary to achieve the modern awards objective. The modern awards objective is set out in s 134(1) of the FW Act, which provides:

(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and

(aa) the need to improve access to secure work across the economy; and

(ab) the need to achieve gender equality in the workplace by ensuring equal remuneration for work of equal or comparable value, eliminating gender-based undervaluation of work and providing workplace conditions that facilitate women's full economic participation; and

(b) the need to encourage collective bargaining; and

(c) the need to promote social inclusion through increased workforce participation; and

(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and

(da) the need to provide additional remuneration for:

(ii) employees working unsocial, irregular or unpredictable hours; or

(iii) employees working on weekends or public holidays; or

(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

[20] The principles relevant to a consideration of whether the variation of a modern award is necessary to achieve the modern awards objective are well-established and were summarised in Application by Treves [2023] FWCFB 98 at [67] as follows:

• Fairness in the context of the modern awards objective is to be assessed from the perspective of the employees and employers covered by the modern award in question.

• The obligation to take into account the considerations at s 134(1) means that each consideration, insofar as it is relevant to the proposed variation, must be treated as a matter of significance in the decision-making process. No particular primacy is attached to any of the s 134(1) considerations.

• It is not necessary to make a finding that the award fails to satisfy one or more of the s 134 considerations as a prerequisite to the variation of a modern award. Generally speaking, the s 134(1) considerations do not set a particular standard against which a modern award can be evaluated; many of them may be characterised as broad social objectives.

• In giving effect to the modern awards objective the Commission is performing an evaluative function taking into account the matters in ss 134(1)(a)-(h) and assessing the qualities of the safety net by reference to the statutory criteria of fairness and relevance.

• What is 'necessary' to achieve the modern awards objective in a particular case is a value judgment, taking into account the s 134(1) considerations to the extent that they are relevant having regard to the context, including the circumstances pertaining to the particular modern award, the terms of any proposed variation and the submissions and evidence.

• While the s 134(1) considerations inform the evaluation of what might constitute a 'fair and relevant minimum safety net of terms and conditions', they do not necessarily exhaust the matters the Commission might properly consider to be relevant.

[21] In the recent decision in Application by Naina re CSIRO Enterprise Award 2016 [2026] FWCFB 22 (Naina) at [17] and [20], the Full Bench considered what may be required for the Commission to be satisfied that a proposed modern award variation is necessary to achieve the modern awards objective:

Insofar as Ms Naina seeks a determination varying the CSIRO Award under s 157(1), it is necessary for her to satisfy us that making such a determination is necessary to achieve the modern awards objective (ss 134(1) and, in the case of an enterprise award, s 168B(1)). Except in relation to proposed variations which are obvious as a matter of industrial merit, significant award changes which are reasonably contestable must generally be supported by an analysis of the relevant legislative provisions and, where feasible, probative evidence. In assessing an application for variation of a modern award, the Commission will take into account previous decisions relevant to any contested issue, and will proceed on the basis that, prima facie, the modern award achieved the modern awards objective at the time it was made: Penalty Rates Decision [2017] FWCFB 1001, 265 IR 1 [269]; Application by Treves [2023] FWCFB 98 (Treves) [68].

A number of recent decisions, primarily Full Bench decisions, have emphasised that an application to vary a modern award which is advanced by reference to the applicant's interests and circumstances only, and which is not supported by evidence or submissions addressing the circumstances of a representative cross-section of the industry or occupation covered by the relevant modern award, is unlikely to have reasonable prospects of success: see Treves [70], [72]-[74]; Application by Woolworths Group Limited [2023] FWCFB 139 [39]; Application by The Allison and Phil Family Trust t/a my OSHC [2024] FWCFB 144 [18]-[20]; Application by Darren Hay [2024] FWCFB 446 [22]; Application by Martinez [2024] FWC 2648 [7]-[9]. That is because the modern awards objective in s 134(1) speaks to matters of general rather than individual application.

[22] As stated, the premise of Mr Whackett's application is that the proviso in clause 32.14 of the Manufacturing Award is inconsistent with the 'obligation' in s 134(1)(da)(ii). Even assuming in Mr Whackett's favour that an employee being on standby - that is, holding themself in readiness to work outside ordinary hours - constitutes 'working unsocial, irregular or unpredictable hours', this premise is misconceived. Section 134(1)(da)(ii) does not constitute an obligation on an employer to pay an employee while on standby, nor does it constitute an obligation upon the Commission to include in a modern award a provision requiring payment to an employee while on standby. Rather, the provision is one of a number of matters which the Commission is required to take into account, in discharging its obligation to ensure that each modern award (together with the National Employment Standards) provides a fair and relevant minimum safety net of terms and conditions.

[23] It might arguably be the case, to the extent that clause 32.14 may permit some employees to be required to standby on a regular basis without payment, that some review of the provision might be justified in order to determine whether the modern awards objective is met. However, in order to undertake such a review, it would be necessary to have evidence before the Commission about a range of relevant matters concerning the operation of the provision across the sector covered by the Manufacturing Award, including the purposes for which employees are required by their employers to standby, the times of the day and the length of the period for which they may be required to standby, the frequency with which they are actually called back to work (and consequently paid in accordance with clause 32.13), and the nature, history, purpose and extent of any 'custom prevailing at an enterprise' which operates to activate the exemption from the payment in clause 32.14. It would further be necessary for the Commission to have material before it which would permit all the s 134(1) matters as relevant to clause 32.14 to properly be considered.

[24] However, as earlier stated, Mr Whackett has not filed any evidence, nor has any union party supporting the application 'in principle' indicated an intention to file any evidence. Further, Mr Whackett's submissions do not address any of the required considerations in s 134(1) apart from paragraph (da)(ii). Mr Whackett does not even describe, beyond stating that his '[former] employer regularly engages staff on standby', anything about the circumstances in which his previous employer applied clause 32.14 to his own employment. As a result, there is no reasonable prospect of the Commission being satisfied on the basis of Mr Whackett's case that it is necessary to vary clause 32.14 in the way he proposes in order to achieve the modern awards objective.

[25] It might be added that, although Mr Whackett appears to have had standing to make his application under s 158(1), he is on his own account now retired and therefore has no current interest in the subject matter of his application beyond pursuing his own long-term annoyance about the issue. As stated in Naina at [22], the modern awards objective 'is concerned with matters of general and public importance and interest', and applications by individuals under s 158(1) are not 'a means for ... individuals to pursue personal grievances, grind axes or ride hobby horses'.

[26] Insofar as Mr Whackett's application seeks to re-agitate his position concerning the proper interpretation of clause 32.14, that issue has been dealt with to finality in matters AM2019/20 and AM2022/4. As Commissioner Bissett stated in her decision in the former matter ( [2020] FWC 6233), Otis Elevators makes clear that a 'custom' does not need to be one which existed at the time the original award predecessor to clause 32.14 was made. There is no interpretational issue in this respect which needs to be addressed.

[27] Mr Whackett's application to vary the Manufacturing Award is dismissed.

C Wilson for the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union.

Y Abousleiman for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, and the Australian Workers' Union.

C Simmons for Australian Business Industrial and NSW Business Chamber.

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