Garry Whackett [2022] FWC 1527 | Case summary

Fair Work Commission|2022-06-23

s.160 - Variation of modern award

Application to vary a modern award to remove ambiguity or uncertainty or correct error -Manufacturing and Associated Industries and Occupations Award 2020 - clause 32.14 - Standing by.

[1] On 16 February 2022 Mr Garry Whackett made an application to the Fair Work Commission pursuant to s.160 of the Fair Work Act 2009 (FW Act) to vary the Manufacturing and Associated Industries and Occupations Award 2020 (2020 Award) to remove ambiguity or uncertainty (the 2022 Application).

[2] Mr Whackett seeks to vary clause 32.14 of the 2020 Award to delete the first 8 words in clause 32.14 as follows:

Subject to any custom prevailing at an enterprise, wWhere an employee is required regularly to hold themselves in readiness to work after ordinary hours, the employee must be paid standing by time at the employee's ordinary hourly rate for the time they are standing by.

[3] This is the second time Mr Whackett had made an application pursuant to s.160 of the FW Act to essentially achieve the same outcome albeit the first application he made was to vary the Manufacturing and Associated Industries and Occupations Award 2010 (2010 Award). This earlier application was made in 2019 (the 2019 Application) and was subject to a decision (2020 Decision)[1] in which I dismissed the 2019 Application.

[4] On 22 February 2022 I issued a statement [2] in relation to the 2022 Application where I outlined the background in relation to the 2019 Application and the reasons given in the 2020 Decision as to why I dismissed the 2019 Application.

[5] Following a Mention in relation to the 2022 Application I issued a further statement on 31 March 2022[3]. In that statement I set out the background to both applications made by Mr Whackett, my findings in relation to the 2019 Application and matters associated with this, the 2022 Application.

[6] In that statement I indicated that I was considering dismissing Mr Whackett's application on the grounds that it had no reasonable prospects of success and set out three reasons as to why I was of such a mind. Those reasons are:

[28] Firstly, to the extent Mr Whackett says that the 2020 Award does not meet the modern awards objectives that is a matter to be prosecuted under s.158 of the FW Act and not s.160 as this application does. When this was brought to Mr Whackett's attention during the preliminary conference his response was to continue with his current application and, if it fails, then perhaps move on to some other type of application. In this respect it is not an efficient use of Commission time and resources, or those of others with an interest in the 2020 Award to have to continue to deal with applications as Mr Whackett moves through various section of the FW Act.

[29] Second Mr Whackett does not intend to call any evidence to support his application and has indicated that, except in reply, he does not intend to make any further submissions. On the material filed by Mr Whackett to date there is nothing to indicate any error in the published 2020 Award. The 2020 Award with respect to standing by reflects what was in the 2010 Award and that reflects its predecessor awards. This is not, on its face, indicative of an error in the 2020 Award. In any event it is not clear how the Commission has the jurisdiction to find an error in the 1952 Award that could then be carried through to the 2020 Award. If such an error did exist it is unfathomable that it has not been identified at any time in the last 70 years.

[30] As I indicated in the decision in relation to the 2019 application of Mr Whackett there may well be unfairness in the Standing by clause of the 2010 Award (and now the 2020 Award) but that is not indicative of ambiguity or uncertainty and, in this case, is certainly not indicative of an error.

[31] Third Mr Whackett fails to appreciate the binding nature of the decision of the Full Court of the Industrial Relation Court of Australia in Otis Elevator. That Mr Whackett takes issue with the reasoning and conclusion of the Full Court is not sufficient for the Commission to not ignore it.

[7] Having clearly set out my preliminary view that the 2022 Application should be dismissed I sought submissions from parties as to that view.

[9] These submissions were made in addition to submissions made by Mr Whackett prior to the issue of the 31 March Statement on:

20 February 2022 (amending a submission filed in conjunction with his application on 16 February 2022),

[10] Submissions were filed by the Ai Group on:

[11] In the statement issued on 31 March 2022 I set out the apparent grounds for Mr Whackett's 2022 Application as could be discerned from the submissions he had filed up until that date as follows:

[18] Mr Whackett argues (as he did in the 2019 application) that, at the time the 1937 Award was made there was no similar provision in existence. An existing employer at that time may well have had an established custom and practice and could, therefore, rely on the exception provided in the 1937 Award clause.

[19] Mr Whackett says that the exception in clause 11(d) of the 1937 Award is to the requirement to pay the ordinary rate of pay for standing by but that the "custom prevailing" for standing by was required to "continue" in its place.

[20] Mr Whackett submits that the words "shall continue" as used at the end of clause 11(d) ensures ongoing payment to employees required to stand by.

[21] The 1952 Award, at clause 14(e) provided for standing by as follows:

Subject to any custom now prevailing under which an employee is required regularly to hold himself in readiness for a call back, an employee required to hold himself in readiness to work after ordinary hours shall until released be paid standing-by time at ordinary rates from the time from which he is so to hold himself in readiness. Provided that the existence of a custom shall not operate to relieve an employer from paying a refrigeration service man the rate herein prescribed.

[22] Mr Whackett submits that, while clause 14(e) in the 1952 Award continued to provide an exception to the requirement to pay ordinary time rates during standing by as established in the 1937 Award, it fails to specify that the custom prevailing "shall continue" as was specified in the 1937 Award. That is, Mr Whackett submits, the exception "fails to define any relief from paying the award rate for those enterprises that do actually qualify for the exception."

[23] Mr Whackett submits that this is the error or omission reflected in the 2020 Award and it can be traced back to the 1952 Award. This he submits has led to absurdities and "unreasonable interpretations to make sense of an incomplete and flawed Standing By clause" which should be resolved by the variation he proposes.

[24] Mr Whackett says the decision in Otis Elevator is not relevant in the determination of the 2022 application for the reasons he put forward in relation to the 2019 application.

[25] In a statement made by Mr Whackett at the preliminary conference in relation to the application he also put that the Standing by provision in the 2020 Award fails to meet the modern awards objectives in the FW Act in that the objectives require "that FWC must ensure additional payment for those engaged on Standby".

[12] In submissions filed following the 31 March 2022 statement Mr Whackett submits as follows:

Clause 32.14 of the 2020 Award fails to comply with the FW Act and this has not been previously considered by the Commission.

In considering if the clause is subject to ambiguity or uncertainty or contains an error pursuant to s.160 of the FW Act the Commission must consider if the 2020 Award meets the modern awards objective specified in s.134 of the FW Act. On every occasion the Commission exercises its powers under Part 2-3 of the FW Act the modern awards objective must be satisfied. Therefore the consideration of an application pursuant to s.160 of the FW Act also enlivens a review as to whether the award meets the modern awards objective.

The modern awards objective says that the Commission must ensure that modern awards, together with the NES, provide a fair and relevant safety net of terms and conditions taking into account the need to provide additional remuneration for employees working unsocial hours.

(Whilst not directly put) clause 32.14 does not provide additional remuneration for employees working unsocial hours (presumably when required to stand by).

[13] Ai Group submits that Mr Whackett is advancing an application pursuant to s.160 of the FW Act that is the same as his 2019 Application.

[14] Ai Group further submits that the 2022 Application should be dismissed by the Commission pursuant to s.587 of the FW Act because it has no reasonable prospect of success and, further, it would not be fair and just to allow Mr Whackett to pursue the 2022 Application.

[15] Ai Group states that many of the arguments advance by Mr Whackett in relation to the 2022 Application are fundamentally the same as those advanced (and rejected) in relation to the 2019 Application, in particular:

That any business established after 1937 cannot rely on the exception in clause 32.14 in relation to "custom prevailing" as that was a transitional arrangement.

• The decision of the Federal Court in Logan v Otis Elevator Co Pty Ltd[4] (Otis Elevator) cannot be relied on.

Clause 32.14 fails to meet the modern awards objective.

Clause 32.14 operates in a manner that is unfair.

[16] Ai Group says that Mr Whackett has failed to identify any ambiguity or uncertainty in clause 32.14 and has not provided any evidence in support of the propositions he advances. Further, it submits that there has been no material change in circumstances that would warrant a reconsideration or might justify a different decision to that issued in relation to the 2019 Application.

[17] In any event the Ai Group says that Mr Whackett's arguments must fail as:

An application pursuant to s.160 of the FW Act is not the appropriate means to pursue an argument that an award provision does not comply with the modern awards objective and should be varied so that it does comply.

The modern awards objective does not "require" that an employee must be entitled to additional remuneration for work performed.

Section 160 of the FW Act is not the appropriate vehicle to pursue a claim that clause 32.14 results in absurdities.

An alleged "omission" of a requirement to pay a rate where there is a custom prevailing cannot ground a variation pursuant to s.160 of the FW Act.

To the extent Mr Whackett seeks to argue that there is an error in the 2020 Award he has failed to demonstrate that the award was made in a manner that did not reflect the intention of the Commission. The material filed does not make out any error in the 1952 Award but, even if it did, this is not enough to demonstrate error in the 2020 Award.

[18] The Ai Group submits that the Commission is required to perform its functions in a way that is just and fair (s.577(b) of the FW Act). It would be unfair and unjust to allow the 2022 Application to be pursued because:

It is not fair to require parties with an interest in the 2020 Award to have to repeatedly respond to essentially the same claim just because Mr Whackett is not satisfied with a previous decision.

If Mr Whackett is dissatisfied with the decision previously issued by the Commission in relation to the 2019 Application the appropriate course is to appeal the decision.

Mr Whackett should not be allowed a second bite of the cherry.

Mr Whackett should not be given multiple opportunities to prosecute his case and other parties should have the benefit of finality.

[19] Whilst reply submissions were not sought Mr Whackett made such submissions.

[20] In reply to the submissions of Ai Group Mr Whackett submits that the modern awards objective is explicit that the Commission must make provision for additional payments for employees engaged to work unsociable hours. He therefore rejects the assertion of Ai Group that there is no "requirement" to make such provision. Stand by constitutes unsociable hours (see Manildra Flour Mills (Manufacturing) Pty Limited v National Union of Workers[5]) and hence must be compensated_._

[21] Further, Mr Whackett submits that in the decision in relation to the 2019 Application the Commission said that the decision in Otis Elevator was "binding on the Commission, absent some compelling case that circumstances have changed."[6] The FW Act presents "a compelling case that circumstances have changed." The decision in Otis Elevator was made 10 years prior to the enactment of the FW Act, the Commission did not exist at the time of the decision in Otis Elevator and the FW Act now "mandates the Commission provide for additional payment for being engaged on standby". In this respect Mr Whackett submits that the statement in Otis Elevator that no payment is necessary for standing by has been "contradicted by current statutory law."

[22] Section 134 of the FW Act provides that:

(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

(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

(e) the principle of equal remuneration for work of equal or comparable value; and

(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.

(2) The modern awards objective applies to the performance or exercise of the FWC's modern award powers, which are:

(a) the FWC's functions or powers under this Part; and

(b) the FWC's functions or powers under Part 2‑6, so far as they relate to modern award minimum wages.

Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).

[23] Section 157 of the FW Act states as follows:

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

(a) make a determination varying a modern award, otherwise than to vary modern award minimum wages or to vary a default fund term of the award; or

if the FWC is satisfied that making the determination or modern award is necessary to achieve the modern awards objective.

Note 1: Generally, the FWC must be constituted by a Full Bench to make, vary or revoke a modern award. However, the President may direct a single FWC Member to make a variation (see section 616).

Note 2: Special criteria apply to changing coverage of modern awards or revoking modern awards (see sections 163 and 164).

Note 3: If the FWC is setting modern award minimum wages, the minimum wages objective also applies (see section 284)...

(3) The FWC may make a determination or modern award under this section:

[24] Section 158 of the FW Act states that:

158 Applications to vary, revoke or make modern award

(1) The following table sets out who may apply for the making of a determination varying or revoking a modern award, or for the making of a modern award, under section 157:

an application to vary, omit or include terms (other than outworker terms or coverage terms) in a modern award

(a) an employer, employee or organisation that is covered by the modern award; or

(b) an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award.

an application to vary, omit or include outworker terms in a modern award

(a) an employer, employee or outworker entity that is or would be covered by the outworker terms; or

(b) an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the outworker terms relate or would relate.

an application to vary or include coverage terms in a modern award to increase the range of employers, employees or organisations that are covered by the award

(a) an employer, employee or organisation that would become covered by the modern award; or

(b) an organisation that is entitled to represent the industrial interests of one or more employers or employees that would become covered by the modern award.

an application to vary or include coverage terms in a modern award to increase the range of outworker entities that are covered by outworker terms

(a) an outworker entity that would become covered by the outworker terms; or

(b) an organisation that is entitled to represent the industrial interests of one or more outworkers who would become outworkers to whom the outworker terms relate.

an application to vary or omit coverage terms in a modern award to reduce the range of employers, employees or organisations that are covered by the award

(a) an employer, employee or organisation that would stop being covered by the modern award; or

(b) an organisation that is entitled to represent the industrial interests of one or more employers or employees that would stop being covered by the modern award.

an application to vary or omit coverage terms in a modern award to reduce the range of outworker entities that are covered by outworker terms

(a) an outworker entity that would stop being covered by the outworker terms; or

(b) an organisation that is entitled to represent the industrial interests of one or more outworkers who would stop being outworkers to whom the outworker terms relate.

(a) an employee or employer that would be covered by the modern award; or

(b) an organisation that is entitled to represent the industrial interests of one or more employers or employees that would be covered by the modern award.

(a) an employer, employee or organisation that is covered by the modern award; or

(b) an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award.

Note: The FWC may dismiss an application to vary, revoke or make a modern award in certain circumstances (see section 587).

(2) Subject to the requirements of the table about who can make what kind of application, an applicant may make applications for 2 or more related things at the same time.

Note: For example, an applicant may apply for the making of a modern award and for the related revocation of an existing modern award.

[25] Section 160 of the FW Act states as follows:

160 Variation of modern award to remove ambiguity or uncertainty or correct error

(1) The FWC may make a determination varying a modern award to remove an ambiguity or uncertainty or to correct an error.

(b) on application by an employer, employee, organisation or outworker entity that is covered by the modern award; or

(c) on application by an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award; or

(d) if the modern award includes outworker terms - on application by an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the outworker terms relate.

[26] Section 587 of the FW Act gives power to the Commission to dismiss an application made to the Commission. Section 587 states that:

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

[27] The power to dismiss an application is not limited to those matters specified in s.587(1)(a)-(c) of the FW Act. This much is clear from the words "[w]ithout limiting when the FWC may dismiss an application".

[28] I have decided that the 2022 Application of Mr Whackett should be dismissed pursuant to s.587(1)(c) of the FW Act on the grounds that it has no reasonable prospect of success.

[29] As the Full Bench said in the decision in re Tenix Defence Pty. Ltd.,[7] "[b]efore the Commission exercises its discretion to vary an agreement pursuant to s.170MD(6)(a) it must first identify an ambiguity or uncertainty."[8] [Underlining added]

[30] That is, the Commission's powers to vary an award where an application is made under s.160 of the FW Act, are only enlivened once ambiguity or uncertainty or an error is identified.

[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.

[32] If the Commission's jurisdiction (power) to vary the 2020 Award is not enlivened by the identification of ambiguity or uncertainty or error the Commission cannot consider the modern awards objective, to the extent Mr Whackett submits that the Commission must. That is, it is only if ambiguity or uncertainty or an error is identified, and the Commission is considering a variation to the modern award to rectify the matter, that the Commission should consider if that variation is in accordance with the modern awards objective as set out in s.134 of the FW Act. Failure to identify ambiguity or uncertainty or an error is not grounds on which to commence some broad ranging review as to whether the award meets the modern awards objective. Further, at the time of the making of the 2020 Award it was deemed then to meet the modern awards objective.[9]

[33] If it is Mr Whackett's argument that the 2020 Award should be varied because it fails to meet the modern awards objective the appropriate course of action (as has been explained) is to make an application pursuant to s.158 of the FW Act and argue his case on that basis. Section 160 is not a "back door" means by which an award should be varied to ensure it meets the modern awards objective absent the condition necessary to enliven a variation.

[34] Mr Whackett's application fails to identify any ambiguity or uncertainty (as opposed to dissatisfaction) with the 2020 Award. Further, he has failed to identify any error of the necessary kind in the 2020 Award so as to enliven the jurisdiction of the Commission. To the extent Mr Whackett identifies an error (and I do not make a finding that such error exists) it is in the 1952 Award, not the 2020 Award.

[35] The Full Bench of the Commission, in relation to an application to vary an award pursuant to s.160 of the FW Act on the grounds of an error, said (with my emphasis) as follows:

[73] With respect to the SDA, this is not demonstrative of any error. It only demonstrates that a methodology was used which the SDA, with the benefit of hindsight, would prefer not to have been used. Nothing was placed before us to suggest that the AIRC did not intend to use that methodology, or that some mathematical error was made in calculating the rates in accordance with that methodology. We do not accept that disagreement - even a well-founded disagreement - with a previous decision concerning an award is sufficient to establish an error for the purpose of s.160. What is necessary is to show that some sort of mistake occurred, in that a provision of the award was made in a form which did not reflect the tribunal's intention. There is nothing to suggest that this occurred here. Accordingly the SDA's application under s.160 must be dismissed.[10]

[36] In the matter before me Mr Whackett's dissatisfaction with the standing by prescription in the 2020 Award is not demonstrative of error, nor has he identified any ambiguity or uncertainty in how the provision operates. There being no ambiguity or uncertainty or error identified a claim for a variation is not enough to enliven the Commission's jurisdiction.

[37] In circumstances where the Commission's power to vary the 2010 Award is not enlivened it is not necessary to revisit issues raised by the decision in Otis Elevator. I would observe however that, just because a decision was made under an earlier legislation or an earlier iteration of the federal industrial tribunal, this is not, of itself, enough to render the decision of no relevance. Neither of the circumstances relied on by Mr Whackett presents, in the current circumstances, a "compelling case".

[38] I accept the concerns Mr Whackett has with clause 32.14 of the 2020 Award. There are means by which those concerns can be addressed but the application made by Mr Whackett that the 2020 Award be varied pursuant to s.160 of the FW Act is not the means by which his desired ends might be achieved. While this has been explained to Mr Whackett in relation to both the 2019 and 2022 Applications it is not advice he has cared to heed. That is his prerogative but he cannot continue to make applications on the grounds that the 2020 Award is ambiguous or uncertain or contains an error, ignore advice, and have an expectation he will achieve his desired outcome - regardless of how meritorious that outcome might be.

[39] For these reasons I am satisfied that the 2022 Application by Mr Whackett has no reasonable prospects of success and therefore, pursuant to s.587(1)(c) of the FW Act, should be dismissed.

[40] In deciding this matter I determined that interested parties should be given the opportunity to make submissions in relation to Mr Whackett's application. I would observe that, even on Mr Whackett's material alone - and absent any evidence and with no intention of Mr Whackett to call any evidence, it is apparent that his 2022 Application would fail.

[41] I acknowledge the submissions of Ai 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 2020 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. In the 2020 Decision I said:

[57] I acknowledge the apparent unfairness in the clause as identified by the AMWU but this is not a basis for a finding of ambiguity or uncertainty.

[58] The Applicant has remained committed in his pursuit of this issue and is to be commended for his willingness to argue his case but s.160 of the FW Act is not the means by which the fairness of the existing provision can or should be assessed.

[43] The application is therefore dismissed. An order[11] to this effect will be issued with his decision.

[7] PR917548, 9 May 2002. Whilst this decision was made in relation to matters in the Workplace Relations Act 1996 the provisions under review in that matter are substantially the same as the provisions of the FW Act such that the decision is relevant to that under consideration in this decision

[10] 4 yearly review of modern - Vehicle Manufacturing, Repair Services and Retail Award 2010 [2016] FWCFB 4418 at [73]

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Garry Whackett [2022] FWC 1527 (23 June 2022)

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