DECISION

Fair Work Act 2009
s.160—Variation of modern award

Application on Commission’s own motion
(AM2021/4)

VEHICLE REPAIR, SERVICES AND RETAIL AWARD 2020
[MA000089]

Section 160 of the Fair Work Act 2009 (Cth) – Commission acting on its own initiative – Vehicle Repair, Services and Retail Award 2020 – rates of pay for 20 year old full-time and part-time console operator, driveway attendant and roadhouse attendant – clauses 2 and Schedule B varied.

[1] On 22 January 2021 the Commission received correspondence from HR Legal on behalf of a number of its clients in which it alerted the Commission to an apparent conflict in the Vehicle Repair, Services and Retail Award 2020 (RS&R Award). No specific application was made by HR Legal or any of its clients.

[2] Given the issues raised in the correspondence the Commission determined to deal with the matter on its own motion pursuant to s.160(2)(a) of the Fair Work Act 2009 (FW Act).

[3] On 11 February 2021 I issued a statement that was posted on an award variation specific page of the Fair Work Commission website and sent to subscribers to the RS&R Award. That statement identified the apparent conflict within the terms of the RS&R Award in relation to junior/adult rates of pay for driveway attendants, roadhouse attendants and console operators who are aged 20 years.

[4] Following a conference of interested parties on 4 March 2021 directions were issued for the filing of submissions and submissions in reply in relation to the identified matters.

LEGILSATIVE CONTEXT

[5] Section 160 of the FW Act provides as follows:

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.

(2) The FWC may make the determination:

(a) on its own initiative; or

(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 more outworkers to whom the outworker terms relate.

[6] It is abundantly clear that, acting on its own motion, it is necessary that an ambiguity or uncertainty be identified by the Commission before considering any variation to remove such an ambiguity or uncertainty.

THE APPARENT CONFLICT

[7] The apparent conflict in the RS&R Award arises from a consideration of the following clauses:

Clause 2 – Definitions

adult roadhouse attendant means an employee of 20 years of age or over employed in a roadhouse, snack bar, kiosk or restaurant being part of or operated as an integral part of an establishment falling within the area of this award.

Clause 16.6 (a)-(d):

16.6 Vehicle industry RS&R – unapprenticed juniors

(a) The minimum weekly rate for a junior employed in the classifications as set out in clause 16.6(b), will be the following:

Age	% of Level 1 rate	$ per week (full-time employee)	$ per hour
16 years and under	47.5	366.99	9.66
17 years	50.0	386.30	10.17
18 years	62.5	482.88	12.71
19 years	75.0	579.45	15.25
20 years	87.5	676.03	17.79

(b) For the purpose of clause 16.6(a), the following classifications apply:

…

•  Driveway attendant

…

•  Roadhouse attendant, required to cook takeaway foods

…

(c) The minimum weekly rate for a junior employed in the classifications set out in clause 16.6(d), will be the following:

Age	% of Level 4 rate	$ per week (full-time employee)	$ per hour
16 years and under	47.5	405.46	10.67
17 years	50.0	426.80	11.23
18 years	62.5	533.50	14.04
19 years	75.0	640.20	16.85
20 years	87.5	746.90	19.66

(d) For the purposes of clause 16.6(c), the following classifications apply:

…

•  Console operator

…

•  Roadhouse attendant, if engaged primarily to cook other than takeaway foods

…

Clause 27 Special provisions – driveway attendant, console operator and roadhouse attendant

27.3 Casual rates

A casual employed as a driveway attendant, roadhouse attendant, console operator or roadhouse attendant engaged primarily to cook other than takeaway meals will be paid in accordance with the casual rates prescribed below:

(a) Adult employees

An adult, including a 20 year old and over, employed on a casual basis principally to perform the following duties will be paid as follows:

	Monday to Friday		Saturdays, Sundays and public holidays		Overtime—additional payment1
	% of relevant rate	$	% of relevant rate	$	% of relevant rate	$
Duties of a driveway attendant	131.75% R1	26.79	171.87% R1	34.94	73.40% R1	14.92
Duties of a roadhouse attendant required to cook takeaway foods	131.75% R2	27.56	171.87% R2	35.95	73.40% R2	15.35
Duties of a console operator, or roadhouse attendant if engaged to primarily cook other than takeaway meals	131.75% R4	29.60	171.87% R4	38.61	73.40% R4	16.49

Clause B.3 Full-time and part-time console operators, driveway attendants and roadhouse attendants

B.3.1 Full-time and part-time adult (20 years and over) console operators, driveway attendants and roadhouse attendants—ordinary and penalty rates

B.3.2 Full-time and part-time adult (20 years and over) console operators, driveway attendants and roadhouse attendants—shiftwork penalty rates

B.3.3 Full-time and part-time adult (20 years and over) console operators, driveway attendants and roadhouse attendants—overtime rates

[The tables at B.3.1, B.3.2 and B.3.3 are omitted]

B.3.4 Full-time and part-time junior driveway attendants and roadhouse attendants cooking takeaway food—percentage of Level 1 rate

The junior hourly rate (Level 1) is based on a percentage of the Level 1 adult rate in accordance with clause 16.6.

(a) Full-time and part-time junior driveway attendants and roadhouse attendants cooking takeaway food—percentage of Level 1 rate—ordinary and penalty rates

Age	Monday to Friday, Saturday before midday	Saturday after midday	Sunday	Public holidays
	% of junior hourly rate (Level 1)
	100%	150%	150%	200%
	$	$	$	$
16 years and under	9.66	14.49	14.49	19.32
17 years	10.17	15.26	15.26	20.34
18 years	12.71	19.07	19.07	25.42
19 years	15.25	22.88	22.88	30.50

(b) Full-time and part-time junior driveway attendants and roadhouse attendants cooking takeaway food—percentage of Level 1 rate—shiftwork penalty rates

Age	Afternoon shift only	Night shift only	Alternating afternoon and night shifts	Alternating day shifts1	Afternoon or night shift that does not continue for at least 5 successive shifts
	% of junior hourly rate (Level 1)
	118%	130%	120%	112.5%	150%
	$	$	$	$	$
16 years and under	11.40	12.56	11.59	10.87	14.49
17 years	12.00	13.22	12.20	11.44	15.26
18 years	15.00	16.52	15.25	14.30	19.07
19 years	18.00	19.83	18.30	17.16	22.88

¹ Alternating day and night shifts (for ordinary hours worked for night shift); alternating day, afternoon and night shifts (for ordinary hours worked for afternoon and night shifts); alternating day and afternoon shifts (for ordinary hours worked for afternoon shifts).

(c) Full-time and part-time junior driveway attendants and roadhouse attendants cooking takeaway food—percentage of Level 1 rate—overtime

Age	Monday to Saturday		Sunday	Public holidays
	First 3 hours	After 3 hours
	% of junior hourly rate (Level 1)
	150%	200%	200%	200%
	$	$	$	$
16 years and under	14.49	19.32	19.32	19.32
17 years	15.26	20.34	20.34	20.34
18 years	19.07	25.42	25.42	25.42
19 years	22.88	30.50	30.50	30.50

B.3.5 Full-time and part-time junior console operators and roadhouse attendants cooking other than takeaway food—percentage of Level 4 rate

The junior hourly rate (Level 4) is based on a percentage of the Level 4 adult rate in accordance with clause 16.6.

[tables B.3.5(a), (b) and (c) omitted but are in same terms as B.3.4(a), (b) and (c)]

[8] The source of the apparent conflict arises from the lack of uniformity in the detail of junior rates of pay for 20 year old roadhouse attendants, driveway attendants and console operators. The uncertainty is reinforced by different arrangements that apply dependent on whether an employee is a casual or permanent employee.

[9] The following clauses suggest that a 20 year old roadhouse attendant is paid adult rates of pay:

•  Clause 2 – definitions which states that an ‘adult roadhouse attendant’ is an employee of 20 years of age or over

•  Clause 27.3(a) – casual rates which states that adult casual rates apply to an employee 20 years old and over

Clauses B.3.1-B.3.3 – full-time and part-time adult (20 years and over)…roadhouse attendants… heading indicates that adult rates apply to 20 year old employees

Clauses B.3.4-B.3.5 – full-time and part-time junior…roadhouse attendants…tables which do not include a rate for 20 year old employees.

[10] The following clauses suggest that a 20 year old driveway attendant or console operator is paid adult rates of pay:

Clause 27.3(a) – casual rates which states that adult casual rates apply to an employee 20 years old and over

Clauses B.3.1-B.3.3 – full-time and part-time adult (20 years and over) console operators, driveway attendants … heading indicates that adult rates apply to 20 year old employees

Clauses B.3.4-B.3.5 – full-time and part-time junior console operators, driveway attendants…tables which do not include a rate for 20 year old employees.

[11] The following clauses suggest that a 20 year old roadhouse attendant, driveway attendant or console operator is paid junior rates of pay:

•  Clauses 16.6(a) and (c) – minimum weekly rate for junior employees [in specified classifications] which provide that a 20 year old is paid a percentage of the applicable adult rate for roadhouse attendants, driveway attendants and console operators.

[12] It is this “apparent conflict” referred to in the correspondence of HR Legal.

AMBIGUITY OR UNCERTAINTY

[13] The approach to the determination of whether a provision is ambiguous or uncertain was considered in Re Tenix Defence Pty Limited (Tenix) 1. Whilst that decision was made under a different statutory scheme, the provisions of s.170MD(6) of the Workplace Relations Act 1996 is not in dissimilar terms to those in s.160(1) of the FW Act such that the reasoning in Tenix remains relevant to the matter before me.

[14] In Tenix the Full Bench observed:

[28] Before the Commission exercises its discretion to vary an agreement pursuant to s.170MD(6)(a) it must first identify an ambiguity or uncertainty. It may then exercise the discretion to remove that ambiguity or uncertainty by varying the agreement.

[29] The first part of the process - identifying an ambiguity or uncertainty – involves an objective assessment of the words used in the provision under examination. The words used are construed having regard to their context, including where appropriate the relevant parts of a related award. As Munro J observed in Re Linfox – CFMEU (CSR Timber) Enterprise Agreement 1997:

“The identification of whether or not a provision in an instrument can be said to contain an ‘ambiguity’ requires a judgment to be made of whether, on its proper construction, the wording of the relevant provision is susceptible to more than one meaning. Essentially the task requires that the words used in the provision be construed in their context, including where appropriate the relevant parts of the ‘parent’ award with which a complimentary provision is to be read.”

[30] We agree that context is important. Section 170MD(6)(a) is not confined to the identification of a word or words of a clause which give rise to an ambiguity or uncertainty. A combination of clauses may have that effect.

[31] The Commission will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention.

[32] Once an ambiguity or uncertainty has been identified it is a matter of discretion as to whether or not the agreement should be varied to remove the ambiguity or uncertainty. In exercising such a discretion the Commission is to have regard to the mutual intention of the parties at the time the agreement was made.

(footnotes omitted)

[15] In Re: Public Service (Non Executive Staff – Victoria) (Section 170MX) Award 2000 2 Senior Deputy President Polites provided clarity on the meaning of ‘uncertainty’ by adoption of the following definition:

In that respect I respectfully adopt the submission made by the State of Victoria that the term “uncertainty” means the quality of being uncertain in respect of duration, continuance, occurrence, liability to chance or accident or the state of not being definitely known or perfectly clear, doubtfulness or vagueness. Those are extracts for the Concise Oxford Dictionary adopted by Commissioner Whelan in Re: Shop Distributive and Allied Employees Association v. Coles Myer [Print R0368]. In my view, as I have indicated, this provision clearly falls within that definition.

[16] In Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union 3 a Full Court of the Federal Court of Australia made clear that the task under an analogous provision pertaining to enterprise agreements (s.217) was not to interpret a provision of the instrument to ascertain its legal meaning but rather to identify whether it is ambiguous or uncertain.4 The Full Court said:

…the identification of the true meaning of a provision is distinct from the question of whether it is ambiguous or uncertain. Ambiguity exists when a provision in an enterprise agreement is capable of more than one meaning. See in this respect the discussion by Gray J of the concept of ambiguity in Printing & Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444 at 449. The ambiguity may be apparent on the face of the document or may become apparent only when extrinsic evidence is adduced. A provision may be ambiguous even though it is capable of interpretation: Cannon Hill Services Pty Ltd v Australasian Meat Industry Employees Union [2016] FWC 7256 at [8]. This means that it was not necessary for the FWC to interpret the 2016 Agreement in order to reach a conclusion concerning the presence of ambiguity or uncertainty...

There are practical consequences for the FWC’s ascertainment of ambiguity or uncertainty for the purpose of s 217 being different in character from the interpretation of an enterprise agreement. One is that there was no need for the FWC to feel constrained in the matters to which it may have regard by the principles developed for the interpretation of enterprise agreements. Moreover, the FWC is obliged, in performing its functions or in exercising its powers in relation to a matter under the FW Act, to take into account, amongst other things, “equity, good conscience and the merits of the matter” – see s 578 of the FW Act. Furthermore, the FWC is not bound by the rules of evidence and procedure in relation to a matter – see s 591 of the FW Act. Each of those provisions applies to the discharge by the FWC of its functions under s 217(1). The consequence is that, far from being precluded from having regard to evidence of the parties’ common intention and to the history of cl 1.2, the Deputy President was permitted to have regard to them as part of the “equity, good conscience and the merits” of the matter.

The constraint to which the Deputy President erroneously felt he was subject had the potential to be material in another way. In relation to s 170MD(6) of the WR Act, the AIRC held that a “significant factor” for the Commission’s consideration in determining whether to exercise its discretion to vary an enterprise agreement is “the objectively ascertained mutual intention of the parties at the time the agreement was made”: Re Australian and International Pilots Association at [17] (Watson VP).

It may well be the case that the mere existence of rival contentions as to the meaning or application of a provision or provisions in an enterprise agreement is not sufficient to indicate ambiguity or uncertainty for the purposes of s 217: Tenix Defence Systems Pty Limited Certified Agreement 2001-2004 [2002] AIRC 531 at [49]. Instead, the FWC is to consider the matter objectively: Beltana No. 1 Salaried Staff Certified Agreement 2001 [2003] AIRC 608 at [23]. In that objective consideration, an assessment of the matters relied upon for the competing contentions will be important, including evidence that the parties to the agreement had a common understanding as to the meaning of the terms they used in their agreement. A reading of the enterprise agreement as a whole may indicate ambiguity or uncertainty in one or more of its clauses. And, as was noted by the Full Bench in Tenix, “the [FWC] will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention” at [31]. 5

[17] It is therefore first necessary to determine if the provisions identified are ambiguous or uncertain. Such a conclusion usually requires there to be rival contentions and an arguable case for one of the contentions. Uncertainty may also be established even if the provisions at issue have a clear meaning and are not ambiguous. In Bianco Walling the Full Court emphasised that though related, the words “ambiguous or uncertain” are not synonymous. In this regard the Full Court said:

Although there is some relationship between these meanings, the definitions indicate that the two terms are not synonymous. There may, for example, be uncertainty in an enterprise agreement even when its terms are not ambiguous. The uncertainty may arise from the application of the unambiguous terms to a given set of circumstances. The distinction between patent ambiguity (linguistic ambiguity) and latent ambiguity (ambiguity in application) provides an illustration by analogy: see JW Carter, The Construction of Commercial Contracts, 2013, Hart Publishing at [18-27].

Further, treating the two terms as having different meanings gives effect to the principle that a court construing a statutory provision should strive to give meaning to every word in the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [71] 6

SUBMISSIONS

[18] Submissions in response to the Statement and Directions of the Commission were received from Australian Industry Group (Ai Group), the Motor Trades Organisations (MTO) (Victorian Automobile Chamber of Commerce, the Motor Traders’ Association of NSW, the Motor Trade Association of South Australia and Northern Territory and the Motor Trade Association of Western Australia) and the Shop, Distributive and Allied Employees’ Association (SDA). Each party also provided submissions in reply.

Australian Industry Group

Different rates for casual and permanent roadhouse attendants, driveway attendants and console operators

[19] The Ai Group provided a history of the development of relevant award provisions. The submissions below relate to the three categories of employees – roadhouse attendants, driveway attendants and console operators (relevant employees) unless otherwise stated.

[20] On consideration of the RS&R Award provisions the Ai Group submits that the differing ages at which the relevant employees commence receiving adult rates of pay, depending on whether they are casual or permanent employees, has its history in the pre-modern awards that covered the industry.

[21] Ai Group submits that during the 4 yearly review of modern awards a Full Bench of the Commission dealt with a proposed variation by the SDA to increase the rates for casual console operators and roadhouse attendants engaged to primarily cook takeaway meals. After considering the history of the variations to predecessor Awards and the establishment of the hourly rates the Full Bench concluded that the rates for casual driveway attendants and roadhouse operators [sic] first established in 1970 did not have an explicable relationship to the permanent weekly rates for those classifications. 14

[22] Ai Group therefore submits that the discrepancy which emerged in 1970 has been maintained in the current RS&R Award whereby casual driveway attendants, roadhouse attendants and console operators at age 20 and above receive the adult casual rate whilst permanent full-time and part-time employees in the same classification receive junior rates at age 20 and adult rates at age 21.

Definition of Roadhouse Attendant

[23] The Ai Group provided a history of the development of the current definition of ‘adult roadhouse attendant’. It says that the 1970 Award contained the following:

38 – Definitions

‘Roadhouse attendant’ means an employee of 20 years of age or over employed in a roadhouse, snack bar, kiosk or restaurant being part of or operated as an integral part of an establishment falling within the area of this award.

[24] The Ai Group says that it is not clear if this wording was intended to restrict employment of roadhouse attendants to people aged 20 years and over.

[25] The 1976 Award contained the same definition. It also provided for junior rates of pay applicable to unapprenticed junior weekly hire employees and there is no reason to assume this did not apply to roadhouse attendants.

[26] In 1980 the Commission made the 1980 Interim Award. 15 That award grouped classifications in the award and assigned each group a letter from A – H. Roadhouse attendants engaged primarily to cook takeaway foods were placed in Group D. All other roadhouse attendants were assigned to Group G. Ai Group says that clause 8(a) in the 1980 Interim Award included percentages to calculate junior rates for weekly hire employees up to and including 20 years of age.

[27] The 1980 Award maintained the classification groupings and the junior rates of pay for employees up to and including 20 years of age.

[28] The Ai Group says that this definition of roadhouse attendant did not change through to, and including, the ‘first iteration’ of the 2010 Award. Each of the Awards in this period (1980-2010) also maintained junior rates of pay for unapprenticed full-time and part-time employees up to and including 20 years of age.

[29] During the 2012 review of modern awards it was agreed that the word ‘adult’ had inadvertently been left off the definition of ‘roadhouse attendant. The 2010 Award was therefore varied so that the definition read:

adult roadhouse attendant means an employee of 20 years of age or over employed in a roadhouse, snack bar, kiosk or restaurant being part of or operated as an integral part of an establishment falling within the area of this award.

[30] On the basis of this history the Ai Group says that it can be surmised that it was always the case that roadhouse attendants could be engaged at under 20 years of age as Awards provided for such juniors. Further, the age qualifier for an adult roadhouse attendant is inconsistent with the junior rates provided for roadhouse attendants elsewhere in various iterations of the award.

Schedule B – Summary of hourly rates of pay

[31] The Ai Group submits that the headings in clauses B.3.1-B.3.3 fail to reflect the extant minimum rates of pay for 20 year old full-time and part-time roadhouse attendants, driveway attendants and console operators. Likewise it says that clauses B.3.4 and B.3.5 fail to include the rates in clause 16.6 for such employees at 20 years of age.

[32] Ai Group submits that the inconsistency between Schedule B and clause 16 of the RS&R Award was introduced as part of the 4 yearly review of modern awards. The exposure draft issued as part of the 4 yearly review of the 2010 Award on 4 March 2016 was the first to contain complete wages tables. That exposure draft included junior rates for full-time and part-time junior console operators, roadhouse attendants and driveway attendants up to and including 20 years of age. The heading to the table at B.3.1 which indicates that adult rates are paid to console operators, driveway attendants and roadhouse attendants from 20 years of age was introduced into exposure drafts issued on 13 February 2019. The same change was made to the tables at clauses B.3.2 and B.3.3 in the exposure draft of 14 October 2019. No explanation was provided for the change except that it was agreed by the parties.

Reply submissions

[33] In its reply submissions the Ai Group indicates that:

•  it opposes the proposal put forward by the SDA to resolve the uncertainty in the RS&R Award

•  Schedule B is intended to summarise the content of the RS&R Award

•  The changes made to the exposure draft in October 2019 were put forward as technical/drafting issues

•  The AMWU submissions of 29 May 2019 only indicated that ‘20 years and over’ was included in table at B.3.1 and so, for consistency, it should be included in B.3.2 and B.3.3 and that the changes were technical and drafting issues only.

Motor Trades Organisations

Different rates for casual and permanent roadhouse attendants, driveway attendants and console operators

[34] The MTO submits that special arrangements for casual driveway attendants were introduced in the 1970 Award and that these arrangements:

•  Included a special rate for casual driveway attendants and roadhouse attendants aged 20 years and over

•  Maintained for all other casual employees (save vehicle salesmen) an hourly rate of one fortieth of the weekly rate for the relevant classification plus 15%.

[35] The rate of pay for weekly hire driveway attendants and roadhouse attendants included junior rates for employees up to and including 20 years of age.

[36] The MTO submits that there was a deliberate intention to treat casual driveway attendants and roadhouse attendants at 20 years of age and over differently to other employees with respect to wage rates and that there was no such intention with respect to weekly hire driveway attendants and roadhouse attendants.

[37] The MTO suggests that these arrangements reflect the distinctive nature of the service station sub-sector.

Definition of Roadhouse Attendant

[38] With respect to the definition of roadhouse attendant in the 1970 Award, the MTO suggests that this is likely to have been a drafting error that related to whether employers in some jurisdictions were prohibited from employing anyone under the age of 20 as a roadhouse attendant. That the age limit arose due to some prohibition, it submits, is supported by the inclusion of a specific definition of roadhouse attendant in the 1970 Award in circumstances where driveway attendant was not defined and by the failure to include roadhouse attendants in the ‘junior to adult’ ratio provisions that applied to driveway attendants and lubritorium attendants.

[39] The MTO says that, regardless of the reason for the definition, it was inconsistent with other provisions of the 1970 Award including the inclusion of junior rates of pay for driveway attendants. 16

[40] The MTO suggest that the definitional error is best understood in the context of very complex and lengthy arbitration that gave rise to the 1970 Award.

[41] The MTO submits that, at the time of making the 1974 Award, the definition of roadhouse attendant was amended to read:

Roadhouse attendant’ means an employee employed in a roadhouse, snack bar, kiosk or restaurant being part of or operated as an integral part of an establishment falling within the area of this award.

[42] Further, ‘roadhouse attendant’ was included in the ‘junior to adult’ ratio at this stage, suggesting clarity on the ability to employ junior roadhouse attendants.

[43] The 1976 Award however reversed the change to the definition and reinserted the reference to ‘20 years of age’. The MTO posit that this occurred because the 1976 Award was an amalgam of the 1970 Award and 1974 Award with the best of each being taken without proper regard to how the provisions would operate as a whole. The inclusion of the reference to ‘20 years of age’ remained inconsistent with the provision of junior rates of pay for roadhouse attendants.

[44] The MTO suggests that nothing further occurred in relation to the definition until the 2012 review of the 2010 Award when the MTANSW made an application to vary the definition. In its submissions in support of its application the MTANSW said that its variations were “limited to matters that are errors, omissions or ambiguities rather than substantive matters”. The variation sought by MTANSW was to vary the definition of roadhouse attendant to insert the word ‘adult’ at the beginning of the definition. It sought such a variation as, it said, the “previous award defined adult roadhouse attendant [sic] as an employee who is over 20 years of age” and that the “amended definition is consistent with Clause 36 which sets out casual rates for driveway attendants, roadhouse attendants and console operators.”

[45] Whilst the proposal of the MTANSW was subsequently adopted 17 the MTO submits that it does not appear that any consideration was given to the apparent inconsistency then created with the provision of junior rates for weekly hire roadhouse attendants.

[46] The MTO submits that, despite the apparent error in the definition, including the 2012 amendment, this does not appear to have had any impact in practice with the Fair Work Ombudsman who continues to advise that junior rates apply to 20 year old full-time and part-time roadhouse attendants.

Schedule B – Summary of hourly rates of pay

[47] The MTO submits that there is no explanation for the drafting in relation to Schedule B other than to suggest that the volume of changes to the 2010 Award in the 4 yearly review has resulted in inadvertent errors and a failure to properly consider the entire award.

[48] The MTO says that the wording in Schedule B is internally inconsistent in that B.3.4 and B.3.5 in the RS&R Award both state that the junior hourly rate is based on the percentage of the Adult Level 1 [or Level 4] rate in accordance with clause 16.6. Clause 16.6 contains junior rates for roadhouse attendants, driveway attendants, and console operators for those aged 20 years of age but the tables in B.3.4 and B.3.5 do not.

Reply submissions

[49] The MTO indicated its support for the Ai Group proposed amendment to the definition of adult roadhouse attendant although suggest that the word ‘adult’ be removed from the definition.

[50] The MTO says, of the submission of the SDA, that the SDA has failed to engage in the history of the RS&R Award (which it says is necessary to understand how the current award came about). With respect to the submission of the SDA that the “anomaly that has now been pointed out between the wage tables and the wording of some clauses is not one that can undermine the rates that are in the Schedules” the MTO suggests that the SDA relies on the exposure draft process in the 4 yearly review to conclude that the changes to Schedule B reflect the intention and agreement of the parties. The MTO submits that the evidence does not support such a conclusion and that “such a substantive change” is at odds with the history of the award and long standing practice. Further, the MTO suggests that the proposed amendments of the SDA will create more confusion and conflict within the RS&R Award.

Shop, Distributive and Allied Employees Association

Schedule B – Summary of hourly rates of pay

[51] The SDA provides a review of the existing RS&R Award provisions contained in Schedule B through the various iterations of exposure drafts of the 2010 Award during the 4 yearly review of the 2010 Award.

[52] The SDA outlined the following history of the 4 yearly review of the 2010 Award:

•  On 19 December 2016 the AMWU raised concerns with respect to Schedule B but no detail of the concerns was provided

•  Joint submissions from employer groups and unions on 12 May 2017 provided an exposure draft of the award with a note that Schedule B was still subject to submissions of the parties and that facilitative provisions, minimum hourly rates for juniors and wage rates still needed to be updated

•  An exposure draft issued by the Commission on 27 June 2018 contained junior rates for 20 year old driveway attendant, roadhouse attendant and console operator classifications as did an exposure draft of October 2018

•  An exposure draft issued by the Commission on 13 February 2019 contained “parties agreed changes” to a number of clauses, including B.3.1, B.3.4(a) and (b) and B.3.5. The headers of the tables had largely been corrected to indicate the correct classification

•  In a joint submission in May 2019 the issue of the headings for various tables in Schedule B was raised. There was “no disagreement that 20 year old driveway, roadhouse or console operators were to be paid the adult rate.” The submission also indicated that “While the amendments to include the words ‘(20 years and over)’ after full-time and part-time adult’ in B.3.1 was implemented, it has not been included in B.3.2 or B.3.3.”

•  An exposure draft issued on 14 October 2019 contained the changes to B.3.2 and B.3.3

•  No further submissions took issue with the 20 year old adult rate.

[53] On this history the SDA submits that it was “clearly the intention and agreement of the parties” to have the 20 year old rates removed from the junior rate provisions. This was, it submits, no drafting error but was an issue directly addressed by the parties. This level of agreement, the SDA submits, should not be discarded.

[54] The SDA submits that the parties agreed on wage rates that applied under the RS&R Award. This, it submits, “was a reflection of consideration of the issues and how the previous awards had applied across the industry”. It submits that the “strength of the agreement” should not be dismissed.

[55] The SDA proposes a range of amendments to the RS&R Award to overcome the inconsistency in the RS&R Award as it identified that inconsistency to properly reflect what the SDA says was the clear intention of the parties.

[56] The SDA makes no submissions in relation to the definition of the roadhouse attendant although, it might be assumed, that the variations it proposes make this issue a nullity.

Reply submissions

[57] In its reply submission the SDA submit that the rates of pay for driveway attendants and roadhouse attendants was a live issue in the 4 yearly review and relies on submissions made by the MTO in May 2016 in support of this. The SDA also relies on a number of emails between the parties that went to issues in relation to rates in Schedule B.

CONSIDERATION

[58] I am satisfied, on the basis of the submissions made by the interested parties that there is both ambiguity and uncertainty in the RS&R Award. This ambiguity and uncertainty is attributable to conflicting clauses in the RS&R Award and the application of these clauses.

[59] I am therefore satisfied that I can exercise my powers under s.160 of the FW Act to vary the RS&R Award to remove that ambiguity and uncertainty.

The 2012 review and the 4 yearly review of modern awards

[60] In determining how that ambiguity and uncertainty should be resolved I have had regard to the submissions of the parties as to the history of the RS&R Award. In this respect I consider it necessary to consider the history prior to the 4 yearly review of modern awards and the process of releasing exposure drafts. Having had some involvement in the review of the 2010 Award and being aware of the extent of the changes required to the 2010 Award – attributable both the size of the 2010 Award and the decision to remove from it those provisions in relation to vehicle manufacturing – and the time taken (the first set of identified issues was provided by the AMWU in May 2014 and the RS&R Award was published in June 2020) it is inevitable that matters were overlooked or that parties responded to changes in the exposure draft without a full consideration of the implications within the 2010 Award or the history of the 2010 Award. In this respect it would appear that, in attempting to resolve some identified inconsistencies within various iterations of exposure drafts, other inconsistencies and uncertainties have inadvertently arisen.

[61] In this respect I should indicate that I do not accept the submission of the SDA that, in the parties proposing changes to Schedule B in the exposure drafts as part of the 4 yearly review, such changes were a reflection of the “previous awards” and how these “had applied across the industry”. The material filed by the SDA does not allow me to draw such a conclusion.

[62] I have had regard to the development of Schedule B as part of the 4 yearly review process. Schedule B provides a “Summary of hourly rates of pay” – that is, it summarises in a useful and accessible form rates of pay and penalties that are otherwise provided for in the Award. To find a difference between the body of the RS&R Award and the provisions of Schedule B and argue that the Schedule B summary is correct and the body of the RS&R Award is wrong, without substantial evidence in support of such an assertion, is not an approach that stands up to scrutiny.

[63] In this respect it should be remembered that, prior to the 4 yearly review, awards did not, as a matter of course, contain a summary schedule as that now found in awards.

[64] In the 4 yearly review of modern awards the Full Bench issued a decision 18 that went, in part, to general drafting and technical issues common to multiple exposure drafts. One of those issues was the inclusion in awards of a summary wages table. After considering the views of interested parties the Full Bench concluded, at [54]-[58]:

2.6 Inclusion of summary wages tables

In its submission on Sub-group 1A and 1B Award exposure drafts, the Ai Group submitted that inclusion of the proposed summary of hourly award rates of pay schedule is not necessary to achieve the modern awards objective. Ai Group is also concerned that the timeframe of the 4 yearly review does not allow parties enough time to check the rates of pay proposed and to understand the award interpretations that underpin the rates in the schedule. If the schedule is to be included it is submitted that it should clearly specify the formulas used to calculate the rates and identify what rounding rules have been used.

The ACTU did not oppose inclusion of tables of rates in wages provisions or separate schedules summarising monetary allowances and hourly rates of pay, provided the information accurately reflects existing entitlements. 

The ACTU noted, however, that there is a range of views on this issue among its affiliates, and that it supported a proposal put by the TCFUA to include a note ‘which makes it clear that award rates are minimum wage rates only and that an employee may be entitled to higher rates of pay as part of their contract of employment’. 

We are not persuaded that the note proposed by the TCFUA is necessary to achieve the modern awards objective.

The summary tables will make modern awards easier to understand and for that reason they will be retained. Additional time will be provided to allow parties to check the rates in each summary table and further comments can be made in the context of submissions on the revised exposure drafts.

[65] In the decision of the Full Bench, the language used to describe the tables and the language of Schedule B strongly supports the conclusion that the tables are intended to summarise the relevant provisions of the award itself. The tables are referred to as ‘summary wages tables’ and Schedule B in the RS&R Award is titled ‘Summary of hourly rates of pay’. That is, the tables summarise what is otherwise provided for in the Award.

[66] In the 4 yearly review decision referred to above the Full Bench also considered (by way of considering the necessity of a supersession clause) whether the 4 yearly review would result in the making of an award that superseded the 2010 awards. Ultimately the Full Bench determined that the course to be taken was that awards would be varied by the 4 yearly review.

[67] It is evident that the Schedule B summary in the RS&R Award was not a feature of the 2010 Award. For this reason the correctness or otherwise of the information contained in Schedule B must be approached at least from the perspective of the 2010 Award as it was that award which was varied to give rise to the RS&R Award.

[68] The 2010 Award had the following features immediately prior to the determination which varied and renamed the 2010 Award in June 2020 which remain relevant to the matter before me:

1. It provided casual rates of pay for roadhouse attendants, driveway attendants and console operators that paid the adult rate at age 20 19

2. It defined an adult roadhouse attendant as an employee 20 years of age or over 20

3. It specified a junior rate of pay for unapprenticed juniors for roadhouse attendant, driveway attendant and console operator classifications at 20 years of age (and younger) 21

Casual rates for 20 year old roadhouse attendants, driveway attendants and console operators

[69] The provision of casual rates for adult employees which also applies to those at 20 years of age employed as driveway attendants, roadhouse attendants and console operators has a long history in this award and it is not suggested by any party – regardless of any other findings – that this unusual expression of the casual rate of pay for such classifications is wrong. Further, I am satisfied that these rates developed independently of weekly hire/full-time and part-time unapprenticed junior rates of pay.

[70] I do not consider the rates for employees engaged as casual roadhouse attendant, driveway attendant or console operators at 20 years of age to be in error or to contain any ambiguity or uncertainty.

Roadhouse attendant definition

[71] I accept the submissions of Ai Group and the MTO that the definition of a ‘roadhouse attendant’ was included in the 1970 Award absent the word ‘adult’. I also accept the submissions of the Ai Group that it is not apparent from the 1970 Award definition if the intention of that definition was to restrict the employment of roadhouse attendants to people aged 20 years and over or if it was for some other reason. While I note the submissions from the MTO that it may have been intended to reflect some state based prohibitions on the employment of a person under the age of 20 as a roadhouse attendant, no evidence has been presented to support such a conclusion. Further, the basis on which the MTO suggest that the definition is a “drafting error” is not clear, nor is it apparent as to what the MTO considers should have been the correct drafting.

[72] I accept that in the 1974 Award, albeit for only a brief period, the reference to ‘20 years of age or over’ was removed from the definition to find its way back again in 1976. It is perhaps unfortunate that the reason for this is lost in history.

[73] The definition of a roadhouse attendant in the 2010 Award included the reference to ‘20 years of age or over’. I accept that, in the 2012 review of the award, following a submission by the parties, the word ‘adult’ was added to the definition.

[74] In making her decision in this respect Deputy President Gooley said (at [10]-[11]):

The majority of the variations proposed were of a technical nature and were aimed at correcting errors, omissions and ambiguities to ensure the appropriate interpretation of the Award. 22 

At the hearing of the applications, the applicants advised that they agreed with or did not oppose the following variations to the Award being made:

1. Clause 3 - insert the word “adult” before the words “roadhouse attendant”.

It was agreed that this word was inadvertently left out. 23

[75] It appears, from the decision reference to the variation being of a “technical nature” and to the inclusion of a word “inadvertently left out” stems from a submission made by the MTANSW (referenced at paragraph [10] of that decision). In its 23 November 2012 submissions the MTANSW said that the “previous award” defined an adult roadhouse attendant as an employee who was 20 years of age (without referencing the basis for this statement) and that the “amended definition” would be consistent with clause 36 which contained the rates for casual roadhouse attendants which provided the adult rate at 20 years of age.

[76] No party protested the submission of the MTANSW and it was accepted by Deputy President Gooley.

[77] As is apparent however the submission was firstly wrong, and secondly failed to take into account the rates of pay for unapprenticed junior roadhouse attendants in clause 33.7 of the 2010 Award. Rather, the submission focused solely on the casual rates of pay and the non-existence of a ‘junior’ casual rate of pay for a 20 year old roadhouse attendant. Whilst this error was unfortunate it is perhaps explained by the existence of a specific clause in the 2010 Award which dealt with casual rates for driveway attendants, roadhouse attendants and console operators which may have drawn attention away from other clauses in the 2010 Award which provided for junior rates of pay for 20 year old roadhouse attendants (as is relevant to the definition). The absence of an apparent junior rate for a casual 20 year old roadhouse attendant may lead one to conclude that a junior rate does not exist for a full time or part time 20 year old roadhouse attendant and hence, that an adult roadhouse attendant is an employee 20 years or older. If this was the reasoning it was clearly wrong.

[78] The evidence before me does not support a conclusion that an adult roadhouse attendant is an employee aged 20 years or over or that it was ever so. Further, the decision of Deputy President Gooley to insert the word ‘adult’ arose from an erroneous submission that its exclusion from the 2010 Award was ‘inadvertent’ when there was no evidence to support that it was the case that a roadhouse attendant at age 20 was entitled to adult rates of pay. The amendment was, in this respect, not directed at an ‘ambiguity’ to be corrected as it was.

[79] For these reasons I am satisfied that ambiguity and uncertainty arises from the definition of ‘adult roadhouse attendant’ when considered in the context of the RS&R Award and in particular clause 16.6 which provides for junior rates of pay for 20 year roadhouse attendants (amongst others).

Schedule B summary of rates of pay

[80] I am not convinced that Schedule B to the RS&R Award properly reflects the provisions of the Award. In this respect uncertainty arises in relation to Schedule B.

[81] Given my findings above it is apparent that there are errors in Schedule B in that it fails to reflect what is otherwise in the RS&R Award. This clearly gives rise to ambiguity and uncertainty in the RS&R Award.

[82] When Schedule B is considered as a summary of rates otherwise provided for in the RS&R Award it is apparent that there are errors in Schedule B. These include in the tables provided at clauses B.3.4(a), (b) and (c) and clause B.3.5(a), (b) and (c). Each of these tables fails to contain rates of pay for employees at 20 years of age in circumstances where clauses 16(a), (b), (c) and (d) do provide such rates of pay. As I have found, Schedule B is a summary of the rates in the body of the RS&R Award.

[83] When it is accepted that the rates of pay for roadhouse attendants, driveway attendants and console operators do provide for junior rates for employees at 20 years of age (and younger) and the definition of adult roadhouse attendant is incorrect it is also apparent that the headings of the tables at clauses B.3.1, B.3.2 and B.3.3 are incorrect and the words ‘20 years and over’ should be deleted. These incorrect headings I am satisfied create uncertainty in the application of the correct rates of pay under the RS&R Award.

[84] These apparent inconsistencies in Schedule B do not alter the provisions contained in the body of the RS&R Award. The proposed changes to Schedule B will ensure that Schedule B is a summary of rates otherwise contained in the RS&R Award. This is, in my view, the correct approach to Schedule B.

DISPOSITION

[85] In order to rectify the issues identified above and, in accordance with my findings and s.160 of the FW Act, I am satisfied that the following variations should be made to the RS&R Award.

1. Clause 2 – Definitions

The definition of ‘adult roadhouse attendant’ should be varied to remove the reference to ‘adult’ and ‘of 20 years of age or over’ so that the definition reads:

roadhouse attendant means an employee employed in a roadhouse, snack bar, kiosk or restaurant being part of or operated as an integral part of an establishment falling within the area of this award.

The definition should be placed in the appropriate alphabetical position in the definitions.

2. Schedule B – Summary of Hourly Rates of Pay

(a) the headings to clause B.3.1, B.3.2 and B.3.3 be amended by deleting ‘(20 years and over)’ where it appears

(b) the tables at clauses B.3.4(a), B.3.4(b), B.3.4(c), B.3.5(a), B.3.5(b) and B.3.5(c) be amended by adding a row for ’20 years’ with the appropriate rates inserted in accordance with clause 16.6(a) and clause 16.6(c).

[86] A draft determination reflecting these amendments will be issued with this decision.

[87] Interested parties will have until 2 August 2021 to provide any comment on the draft determination. Absent any comments a final Determination varying the RS&R Award will be issued.

COMMISSIONER

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 1   PR917548, 9 May 2002

 2   T3721, 24 November 2000

 3   [2020] FCAFC 50 cited in Re Australian Industry Group [2021] FWCFB 115

 4   Ibid at [67]

 5     Ibid at [67]-[70]

 6    Ibid at [75]-[76]

 7   125 CAR 977

 8   Vehicle Industry – Repair Services and Retail Award 1970

 9   Vehicle Industry – Repair Services and Retail Award 1976

 10   Vehicle Industry – Repair, Services and Retail – Award 1980

 11   Vehicle Industry – Repair, Services and Retail – Award 1986

 12   Vehicle Industry – Repair, Services and Retail – Award 2002

 13   Vehicle Manufacturing, Repair, Services and Retail Award 2010

 14   [2016] FWCFB 4418 at [70] (see more generally at [69]-[73])

 15   Vehicle Industry – Repair Services and Retail – Interim Wages Award 1980

 16   1970 Award clause 6(f)(ii) and clause 13

 17   [2013] FWC 3714

 18   [2014] FWCFB 9412 (23 December 2014)

 19   2010 Award clause 36

 20   2010 Award clause 6

 21   2010 Award clause 33.7(a)-(d)

 22    Submissions of the MTANSW dated 23 November 2012 at [1].

 23   [2013] FWC 3714