Garry Whackett [2022] FWC 692 | Case summary

Fair Work Commission|2022-03-31

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] Mr Garry Whackett has made an application (2022 application) to the Fair Work Commission pursuant to s.160 of the Fair Work Act 2009 (FW Act) seeking a variation to the Manufacturing and Associated Industries and Occupations Award 2020[1] (2020 Award). Mr Whackett seeks a variation to clause 32.14 - Standing by on the grounds that it contains "an error or omission" that leads to an incorrect interpretation and application of the clause.

[2] Clause 32.14 of the 2020 Award states as follows:

Subject to any custom prevailing at an enterprise, where 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] Mr Whackett seeks to vary the clause by deleting the first 8 words of the clause so that it reads:

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.

[4] The application of Mr Whackett was subject to a preliminary conference before me on 23 March 2022. At that conference the Ai Group proposed that the Commission should consider dismissing Mr Whackett's application on its own motion on the grounds that it has no reasonable prospect of success.

[5] For the reasons that follow I have decided that I should consider dismissing Mr Whackett's application pursuant to s.587(1)(c) of the FW Act.

[6] Division 5 of Part 2-3 of the FW Act relates to the exercise of modern award powers.

[7] Section 157 of the FW Act deals with the powers of the Commission to vary a modern award to achieve the modern awards objective. 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).

(2) The FWC may make a determination varying modern award minimum wages if the FWC is satisfied that:

(a) the variation of modern award minimum wages is justified by work value reasons; and

(b) making the determination outside the system of annual wage reviews is necessary to achieve the modern awards objective.

Note: As the FWC is varying modern award minimum wages, the minimum wages objective also applies (see section 284).

(2A) Work value reasons are reasons justifying the amount that employees should be paid for doing a particular kind of work, being reasons related to any of the following:

(b) the level of skill or responsibility involved in doing the work;

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

[8] Section 158 of the FW Act details who may make an application to vary or revoke a modern award. Relevantly, this includes an employee that is covered by the modern award.

[9] Section 160 of the FW Act sets out the Commission's power to vary a modern award to remove ambiguity or uncertainty or to correct an error. Section 160 of the FW Act states that:

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.

[10] Section 587 is found in Division 3 of Part 5-1 of the FW Act which relates to the conduct of matters before the Commission. Section 587 deals with the Commission's powers to dismiss an application. Section 587 of the FW Act says:

(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:

[11] In 2019 Mr Whackett made an application (the 2019 application) to vary the Manufacturing and Associated Industries and Occupations Award 2010 (2010 Award) pursuant to s.160 of the FW Act. Mr Whackett sought to amend clause 32.14 - Standing by of the 2010 Award by deleting the first 8 words of the clause.[2] In that application Mr Whackett claimed that clause 32.14 was ambiguous and uncertain as the clause, as worded, operated unfairly.

[12] Mr Whackett also argued that the decision in Logan v Otis Elevator Co Pty Ltd[3] (Otis Elevator) should not be considered authority on the issue and that reliance on it was misplaced. Mr Whackett says the decision in Otis Elevator can only stand in circumstances where a company is a mature company with established practices.

[13] On 26 November 2020 I issued a decision[4] in which I dismissed the application to vary the 2010 Award as I found that no ambiguity or uncertainty had been shown to exist.

[14] In that decision I noted the submission of the Australian Manufacturing Workers' Union that clause 32.14 in the 2010 Award (replicated in the 2020 Award) did appear to be unfair but that unfairness did not create ambiguity or uncertainty.

[15] I found that that Mr Whackett's issue goes to how the clause is applied and his "strong belief that employers claim the existence of a custom so as to avoid an obligation to pay an employee who is required to stand by."[5] I noted that, in the absence of evidence, and even if Mr Whackett was correct as to unfairness, this did not create ambiguity or uncertainty in the clause necessary to warrant consideration of a variation to the clause as sought in the 2019 application.

[16] Mr Whackett has now made the 2022 application to vary clause 32.14 of the 2020 Award. Mr Whackett says that clause 32.14 contains an error or omission that leads to an incorrect interpretation and application of the exception provided in the clause. He traces this "error or omission" back to the Metal Trades Award 1952[6] (1952 Award).

[17] A standing by provision first appeared in the Consolidated Metal Trades Award[7] in 1937 (1937 Award). The relevant clause in the 1937 Award said, at clause 11(d):

An employee occasionally 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. But any custom now prevailing under which an employee is required regularly to hold himself in readiness for a call back shall continue.

[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".

[26] Mr Whackett indicated at the preliminary conference that he did not wish to make any further written submissions and did not intend to call any evidence in relation to the 2022 application.

[27] There are a number of reasons as to why I am considering dismissing Mr Whackett's application on the grounds that it has no reasonable prospects of success.

[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.

[32] In these circumstances my preliminary view is that the application should be dismissed pursuant to s.587(1)(c) of the FW Act as it has no reasonable prospect of success.

[33] Prior to deciding this question the following directions are issued:

1. Any party wishing to make submissions in relation to my preliminary view should file such submissions with the Commission by 4.00pm Friday 22 April 2022.

2. Any party wishing to make submissions in reply is required to files submissions with the Commission by 4.00pm Friday 13 May 2022.

3. Any party wishing to be heard in the matter should advise the chambers of Commissioner Bissett at chambers.bissett.c@fwc.gov.au by 4.00pm Friday 20 May 2022. If no party seeks to be heard the matter will be determined on the basis of the material filed.

[34] Submissions should be sent by email to [amod@fwc.gov.au](mailto: amod@fwc.gov.au). All submissions and any other correspondence will be posted on the application webpage.

[2] Mr Whackett also sought to make a further variation to the 2020 Award in relation to health and safety. That matter is not relevant to the application before me

[4] Application by Garry Whackett [2020] FWC 6233

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Garry Whackett [2022] FWC 692 (31 March 2022)

At a glance

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Decision date

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Judgment (74 paragraphs)

Legislation Cited (1)