Federal Court of Australia

W T H Pty Ltd v Fair Work Ombudsman [2026] FCA 1650

ORDERS

THE COURT DECLARES THAT:

1.    From 1 January 2010 to 10 May 2020 the Vehicle Manufacturing, Repair, Services and Retail Award 2010, by operation of s 48 of the Fair Work Act 2009 (Cth), covered the employment of the employees of the Applicant employed in the positions of Vehicle Service Agent and Rover (also known as Customer Service Representative or Vehicle Return Agent) to the exclusion of all other modern awards.

2.    On and from 11 May 2020 the Vehicle Repair, Services and Retail Award 2020, by operation of s 48 of the Fair Work Act 2009 (Cth), covers the employment of the employees of the Applicant employed in the positions of Vehicle Service Agent and Rover (also known as Customer Service Representative or Vehicle Return Agent) to the exclusion of all other modern awards.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RAPER J:

1    This proceeding arises from a dispute between the applicant, W T H Pty Ltd, which trades as Avis Car Rentals, and the respondent, the Fair Work Ombudsman, about which modern award covered and currently applies to Avis employees performing the roles of Vehicle Service Agent and Rover (also known as Customer Service Representatives or Vehicle Return Agents).

2    Avis contends and seeks declarations to the effect that the employees occupying those positions were covered by the Vehicle Manufacturing, Repair, Services and Retail Award 2010 from 16 December 2009 to 10 May 2020, and by the Vehicle Repair, Services and Retail Award 2020 from 11 May 2020 onwards. The FWO contends that these employees were covered by the General Retail Industry Award 2010 and are now covered by the General Retail Industry Award 2020. Additionally, Avis seeks in the alternative, a declaration that one of Avis’ employees who occupies both roles, Benjamin Basile, by operation of s 48 of the Fair Work Act 2009 (Cth), was covered by the Vehicle Award 2010 from 1 November 2017 to 10 May 2020 and the Vehicle Award 2020 from 11 May 2020 until 24 October 2023.

3    Avis contends that this is material because, if the FWO is correct, it may be that Mr Basile and his colleagues have been underpaid.

The specific relief sought

4    Avis seeks the following declarations, pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) and s 545 of the FW Act:

1.    A declaration that on and from 16 December 2009 to 10 May 2020 the Vehicle Manufacturing, Repair, Services and Retail Award 2010 by operation of s.48 of the Fair Work Act 2009 (Cth) covers the employment of the employees of the Applicant employed in the positions of Vehicle Service Agents and Rovers (also known as Customer Service Representatives or Vehicle Return Agents) to the exclusion of all other modern awards.

2.    A declaration that on and from 11 May 2020 the Vehicle Repair, Services and Retail Award 2020 by operation of s.48 of the Fair Work Act 2009 (Cth) covers the employment of the employees of the Applicant employed in the positions of Vehicle Service Agents and Rovers (also known as Customer Service Representatives or Vehicle Return Agents) to the exclusion of all other modern awards.

3.    In the alternative to declarations 1 and 2, a declaration that Benjamin Basile, in his employment with the Applicant was by operation of s.48 of the Fair Work Act 2009 (Cth) covered by:

a.    the Vehicle Manufacturing, Repair, Services and Retail Award 2010 from 1 November 2017 to 10 May 2020; and

b.    the Vehicle Repair, Services and Retail Award 2020 from 11 May 2020 to 24 October 2023.

5    Whilst there is no dispute as to jurisdiction, nonetheless, the Court must be satisfied that there is jurisdiction. I am satisfied that there is a clear “matter”: Police Federation of Australia (Victoria Police Branch) v Chief Commissioner of Police (Victoria) [2026] FCAFC 47 at [9] per Snaden and Shariff JJ, at [113] per Kennett J; OS ACPM Pty Ltd v Mining and Energy Union [2026] FCAFC 59; 350 IR 56 at [105] per Raper and Shariff JJ; DP World Sydney Ltd v Construction, Forestry and Maritime Employees Union [2026] FCA 592 at [13] per Shariff J). That is, there is a subject matter defined by reference to s 76(ii) of the Constitution, with the subject matter being the proper construction and application of each of the above modern awards made pursuant to the FW Act which is a “matter arising under a law made by the [Commonwealth] Parliament” within the meaning of s 76(ii): Police Federation at [113], [122], [123] per Kennett J; OS ACPM at [106] per Raper and Shariff JJ; DP World at [13] per Shariff J.

6    There is an extant dispute giving rise to a justiciable controversy. Avis and the FWO dispute which modern award applies to Avis employees employed in positions of either VSA or Rover. The dispute is not limited to Mr Basile. There is therefore an issue as to the construction of, application of and compliance with those awards which gives rise to an immediate right, duty or liability for determination by this Court. The parties are not merely seeking an advisory opinion: OS ACPM at [106] per Raper and Shariff JJ.

7    For the reasons which follow, I grant the application and make certain of the declarations sought by the applicant in terms.

The relevant clauses

The 2010 and 2020 Vehicle Awards

8    Clause 4 of the Vehicle Award 2010 reads as follows:

4.    Coverage

[Varied by PR994547, PR538947]

4.1    This award covers employers throughout Australia of employees engaged in vehicle manufacturing and/or vehicle industry repair, services and retail, as defined in this clause, to the exclusion of any other modern award and where the employer’s establishment, plant or undertaking is principally connected or concerned with:

(a)    the selling, distributing, dismantling/wrecking/restoring, recycling, preparing for sale, storage, repairing, maintaining, towing, servicing, and/or parking of motor vehicles of all kinds, including caravans, trailers or the like and equipment or parts or components or accessories thereof including the establishments concerned for such vehicles and the like;

(b)    operations or allied businesses concerned with selling, distributing or supplying running requirements for vehicles (including motor fuels, gas and oils);

(c)    the selling and/or handling and/or retreading and/or storing/distribution and/or fitting and/or repairing of tyres or the like made of any material;

(d)    the repair and servicing of motor vehicles in the establishment of an employer not falling within clauses 4.1(a), (b) and (c) but who is engaged in the motor vehicle rental business;

(e)    the manufacturing, assembling or repairing of carriages, carts, wagons, trucks, motor cars, bodies, motorcycles, railway cars, tram cars, side-cars or other vehicles or parts or components or accessories in wood, metal and/or other materials;

(f)    manufacturing, assembling, fabricating, installing, servicing, maintaining, reconditioning or repairing of engines or vehicle servicing equipment and agricultural machinery or implements or the like where such employer immediately prior to 31 December 2009 was bound by clause 1.5.4(a) of the Vehicle Industry Award 2000;

(g)    any operation concerned with roadside/mobile service; or

(h) driving school instruction.

4.2    For the purposes of coverage of this award:

(a)    employees engaged in vehicle industry repair, services and retail means employees covered by the classifications at clause 33 and for whom Section 1—Vehicle Industry RS&R Employees applies; and

[4.2(b) varied by PR538947 from 01Jan10]

(b)    employees engaged in vehicle manufacturing means employees covered by the classifications at clause 45 and for whom Section 2, Section 3 and Section 4 applies.

4.3    Exclusions

(a)    This award does not cover:

(i)    employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees;

[New 4.3(a)(ii) inserted by PR994547 from 01Jan10]

(ii)    employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees;

[4.3(a)(ii) and (iii) renumbered as 4.3(a)(iii) and (iv) by PR994547 from 01Jan10]

(iii)    an employer who, on 31 December 2009 was engaged in the manufacture and/or assembly of metal parts or accessories and was bound to observe the Metal, Engineering and Associated Industries Award 1998; or

(iv)    an employee in a car park where the employee’s undertaking does not provide repairs and service and/or servicing facilities of motor vehicles other than supplying petrol and oil.

(b)    Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

[New 4.4 and 4.5 inserted by PR994547 from 01Jan10]

4.4    This award covers any employer which supplies labour on an on-hire basis in the industry set out in clause 4.1 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. This subclause operates subject to the exclusions from coverage in this award.

4.5    This award covers employers which provide group training services for apprentices and/or trainees engaged in the industry and/or parts of industry set out at clause 4.1 and those apprentices and/or trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This subclause operates subject to the exclusions from coverage in this award.

[4.4 renumbered as 4.6 by PR994547 from 01Jan10]

4.6    The award does not cover an employee excluded from award coverage by the Act.

NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.

9    Clause 4 of the Vehicle Award 2020 reads as follows:

4.    Coverage

4.1    This award covers employers throughout Australia of employees engaged in the vehicle repair, services and retail industry to the exclusion of any other modern award and where the employer’s establishment, plant or undertaking is principally connected or concerned with the vehicle repair, services and retail industry.

4.2    In this award the vehicle repair, services and retail industry means an establishment, plant or undertaking principally connected or concerned with:

(a)    the selling, distributing, dismantling/wrecking/restoring, recycling, preparing for sale including by assembling, storage, repairing, maintaining, towing, servicing, customisation, modifying and/or parking of motor vehicles of all kinds, including motor cars, trucks, caravans, motorcycles, trailerable boats, agricultural machinery, trailers, or the like and equipment or parts or components or accessories thereof including the establishments concerned for such vehicles and the like;

(b)    operations or allied businesses concerned with selling, distributing or supplying running requirements for vehicles (including motor fuels, gas and oils);

(c)    the selling and/or handling and/or retreading and/or storing/distribution and/or fitting and/or repairing of tyres or the like made of any material;

(d)    the repair and servicing of motor vehicles in the establishment of an employer not falling within clauses 4.2(a), 4.2(b) and 4.2(c) but who is engaged in the motor vehicle rental business;

(e)    the repairing of carriages, carts, wagons, bodies, railway cars, tram cars, side-cars or other vehicles or parts or components or accessories in wood, metal and/or other materials;

(f)    installing, servicing, maintaining, reconditioning or repairing of engines or vehicle servicing equipment and agricultural machinery or implements or the like;

(g)    any operation concerned with roadside/mobile service; or

(h)    driving school instruction.

4.3    For the purposes of coverage of this award employees engaged in vehicle repair, services and retail industry means employees covered by the classifications in Schedule A—Vehicle Industry RS&R—Skill Level Definitions.

4.4    Exclusions

This award does not cover:

(a)    an employee in a car park where the employer’s undertaking does not provide repairs and service and/or servicing facilities of motor vehicles other than supplying petrol and oil;

(b)    employees excluded from award coverage by the Act;

(c)    employees who are covered by a modern enterprise award or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees; or

(d)    employees who are covered by a State reference public sector modern award or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.

4.5    Subject to the exclusions in clause 4.4, this award covers any employer which supplies labour on an on-hire basis in the vehicle repair, services and retail industry in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry.

4.6    Subject to the exclusions in clause 4.4, this award covers employers which provide group training services for apprentices and/or trainees engaged in the vehicle repair, services and retail industry and/or parts of that industry and those apprentices and/or trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed.

4.7    Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.

The Retail Award 2020

10    Clause 4 of the Retail Award 2020 reads as follows:

4.    Coverage

[Varied by PR764967]

4.1    This industry award covers, to the exclusion of any other modern award:

(a)    employers in the general retail industry throughout Australia; and

[4.1(b) varied by PR764967 ppc 08Aug23]

(b)    employees (within a classification defined in Schedule A—Classification Definitions) of employers mentioned in clause 4.1(a).

4.2    general retail industry means the retail sale or hire of goods or services for personal, household or business consumption including:

(a)    clothing; and

(b)    food; and

(c)    furniture and household goods; and

(d)    personal and recreational goods; and

(e)    bakery shops at which the predominant activity is baking products for sale on the premises; and

(f)    the provision of repair services for household equipment; and

(g)    the provision of customer information or assistance at retail complexes; and

(h)    the delivery of newspapers by employees of a newsagent,

but excluding the following that are covered by other awards:

(i)    the retail sale or hire of goods or services by any of the following:

(i)    community pharmacies; or

(ii)    pharmacies in hospitals or other institutions providing an in-patient service; or

(iii)    hair and beauty establishments; or

(iv)    stand-alone butcher shops; or

(v)    stand-alone nurseries; or

(vi)    manufacturing or processing establishments other than seafood processing establishments; and

(j)    hair and beauty work undertaken in the theatrical, amusement or entertainment industries; and

(k)    clerical functions performed away from a retail establishment; and

(l)    warehousing and distribution; and

(m)    motor vehicle retailing and motor vehicle fuel and parts retailing; and

(n)    restaurants, cafes, hotels, motels or fast food operations; and

(o)    building, construction, installation, repair or maintenance contractors engaged to perform work at a retail establishment.

4.3    This industry award also covers:

(a)    on-hire employees working in the general retail industry (with a classification defined in Schedule A—Classification Definitions) and the on-hire employers of those employees; and

(b)    apprentices or trainees employed by a group training employer and hosted by an employer covered by this award to work in the general retail industry (with a classification defined in Schedule A—Classification Definitions) at a location where the employees mentioned in clause 4.1(b) also perform work and the group training employers of those apprentices or trainees.

4.4    However, this industry award does not cover any of the following:

(a)    employees excluded from award coverage by the Act; or

NOTE: See section 143(7) of the Act.

(b)    employees covered by a modern enterprise award or an enterprise instrument or their employers; or

(c)    employees covered by a State reference public sector modern award or a State reference public sector transitional award or their employers; or

(d)    employers covered by any of the following awards:

(i)    the Fast Food Industry Award 2010; or

(ii)    the Meat Industry Award 2020; or

(iii)    the Hair and Beauty Industry Award 2010; or

(iv)    the Pharmacy Industry Award 2020.

4.5    If an employer is covered by more than one award, an employee of that employer is covered by the award containing the classification that is most appropriate to the work performed by the employee and the industry in which they work.

NOTE: An employee working in the general retail industry who is not covered by this industry award may be covered by an award with occupational coverage.

Factual background

11    It is essential, when applying the coverage provisions of each award, to assemble the facts as to the nature of Avis’ business and the nature of the work undertaken by the employees in positions (VSAs and Rovers) which are the subject of the declaratory relief.

12    The Statement of Agreed Facts reveals the following:

(a)    Avis’ business (like that of the corporate group of which it forms part) has, from 2019, generated approximately 82% to 91% of its revenue from car rental services and ancillary products;

(b)    The corporate group has three types of corporate locations: (i) corporate locations which are being operated by the group directly (of which there are 96 corporate locations); (ii) agency locations run by separate corporations to whom the group supplies facilities and vehicle fleet and pays commission payments in return for receiving the rental-related revenue; and (iii) franchisee locations, operated by franchisees; and

(c)    Avis only employs employees at the corporate locations.

13    The corporate locations include both airport and street locations. The geographical sites include buildings with retail counters, car parking areas and extend to wash bay areas. At some of the larger locations, there may be multiple sites, with one site housing the retail counters, a different site housing the carparks and a further site housing wash bay areas. As to the latter wash bay areas, for example at Brisbane airport, there are two wash bay areas, one for quick turnaround, and another comprising a particular site. Avis emphasised these discrete areas, particularly the wash bay areas, to aid its preferred construction, to which I will return. It was submitted that whilst there is a single enterprise, there are multiple “undertakings”, one being the “wash facility”.

14    The parties agreed that approximately 75% of Avis’ workforce, some 1,125 workers, are employed at its rental locations. The majority of employees are employed in the roles of “Vehicle Service Agents” (320), “Rental Sales Agents” or RSAs (302), “Rental Operations Agents” (88) and “Rovers” (55).

15    Accordingly, the declaratory relief is sought with respect to whether the claimed award (the 2010 and 2020 Vehicle Awards) covered particular employees in the positions of VSA or Rover. It is therefore worthwhile understanding, by way of context, what those positions entail.

16    The Agreed Facts reveal the following regarding VSAs:

(a)    Since at least 2001, VSAs have been responsible for preparing vehicles for rental by detailing them, that is, cleaning the interior and exterior of a vehicle;

(b)    At present, Avis employs approximately 320 VSAs nationally;

(c)    The primary duties of VSAs at all sites comprise:

(i)    cleaning the interior and exterior of the vehicles;

(ii)    checking for lost property and removing rubbish;

(iii)    checking vehicles on return for damage, fuel levels, tyre pressure, tread depths and windscreens; and

(iv)    driving vehicles within and between Avis work areas;

(d)    A detailing checklist (annexed to the Agreed Facts) sets out the tasks required of the VSAs;

(e)    Some VSAs have occasional contact with customers as they move through car park areas at front-of-house facilities;

(f)    Avis does not require VSAs to hold qualifications beyond a driver’s license. They have to undergo induction training and a 1-2 week buddying process.

17    In addition, Avis emphasised that the VSAs drive the vehicles within the wash bay area or to the repair workshop. Further, Avis submits that VSAs also occasionally perform ancillary duties such as conducting and communicating inventory, logging vehicles in and out of service areas according to established procedures, completing any necessary paperwork and/or notifying dispatchers or Avis’ mechanics in case of vehicle problems.

18    It was agreed between the parties that the primary duties of Rovers comprise:

(a)    checking in returned vehicles using a handheld electronic device to register the car, record the kilometres on the vehicle and fuel levels, and closing out the rental;

(b)    performing a walk-around inspection to check for damage and lost property, and taking photos as required;

(c)    engaging with customers by greeting them, guiding them to a vehicle return bay, reminding them to take their belongings, asking whether there were any issues with the vehicle or about damage and refuelling, and referring issues such as questions about damage to vehicles.

19    It was further agreed that the standard operating procedure for Rovers (which is annexure B to the Agreed Facts) accurately sets out the tasks required of Rovers in the relevant period. Rovers have performed their work in the car park connected to the front-of-house location, but separately to the rental counter itself. At larger sites, from time to time Rovers may also drive vehicles between the front-of-house location and back-of-house area. Avis has not required Rovers to hold qualifications beyond a driver’s license. They have undergone induction training and a 1-2 week buddying process. At present, Avis employs 55 Rovers nationally, at larger sites.

20    The evidence revealed that the VSAs generally work in the wash bay areas and the Rovers in the car park areas.

21    The Agreed Facts reveal the following regarding mechanics employed by Avis:

Mechanics

21.    In 2026, Avis employs approximately 22 trade-qualified motor mechanics.

22.    The mechanics are (and have been) based at AB Group’s repair workshops, which are (with one exception being Apex Maroochydore) located separately to rental locations. The repair workshops exclusively service AB Group's vehicles and have not ever been revenue-generating.

23.    The role of mechanics has been primarily to service AB Group vehicles, involving preventative maintenance like oil changes, and small repairs like changing tyres, balancing tools or performing system resets. Larger repairs have been generally outsourced.

24.    A copy of a representative job description for a mechanic is annexure C to this document.

22    As to Mr Basile, it is agreed that:

Ben Basile

25.    Ben Basile commenced employment with Avis in 2001.

26.    From 29 September 2008 to December 2020, Mr Basile was employed as a Rover.

27.    From December 2020 to April 2022, Mr Basile performed VSA duties.

28.    From April 2022 to date of filing, Mr Basile performed Rover duties. On 23 September 2022, Mr Basile signed a variation to his employment conditions showing the change of role from VSA to Rover, effective 8 September 2022.

23    As to RSAs, it did not appear to be in dispute that this position is a customer-facing role primarily responsible for planning and facilitating rental transactions with customers and core duties include:

(1)    coordinating and allocating vehicles for rental;

(2)    performing rental transactions with customers, i.e. confirming the customer's booking, finalising the paperwork and providing them with instructions, and selling ancillary products or add-ons like extra insurance;

(3)    having discussions with customers about any issues; and

(4)    other related activities such as using the Avis system to track down overdue rentals, checking manifests, collating rental agreements, archiving, etc.

Relevant statutory provisions

24    Section 47 of the FW Act prescribes the circumstances in which a modern award applies to an employer, employee, organisation or outworker entity. A modern award applies where: (a) the award “covers” the relevant employee, employer, organisation or outworker entity, within the meaning of s 48; (b) the award is in operation within the meaning of s 49; and (c) no other provision of the Act provides, or has the effect, that the award does not apply to that person or entity. Pursuant to s 48, a modern award “covers” an employee or employer if it is expressed to cover them, or if coverage arises by reason of other circumstances specified in that section.

Competing constructions

25    In essence, Avis submitted that, by reason of the expansive effect of the coverage definition, which included “establishment, plant or undertaking”, the fact that the Vehicle Award is an industry award, the classifications are apt for the VSAs and Rovers, and the concept of “servicing” should be given broad import, that employees engaged as VSAs and Rovers are engaged in that part of Avis’ “establishment, plant or undertaking” “principally connected or concerned with” the “repair and servicing of motor vehicles” such that they fall within cl 4.1(d) of the Vehicle Award 2010 and cl 4.2(d) of the Vehicle Award 2020.

26    Avis submits that each corporate location is an “establishment” and each such location has “separate undertakings”. One of the “undertakings” addresses the “service of motor vehicles” and that “undertaking” is the undertaking performed at the wash bay areas and, in particular, the work done by VSAs. It is Avis’ position that for the “undertakings” involving the wash bay areas, they are principally, that is, mainly connected with, related to or associated with, the “servicing of motor vehicles”. Accordingly, once the employer is covered by the Vehicle Award, it covers the employer and the employees to the exclusion of any other modern award: A textual outcome flowing from the wording of the relevant clause. This is said to be the intended outcome because Avis is an employer, engaged in the relevant industry, and the Vehicle Award applies to all the employees of that employer (so long as the employees are covered by the Vehicle Award classifications).

27    This textual outcome is said to be supported by the Vehicle Award history. This is said to be so because a review of the predecessor instruments reveal, over time, there was an expansion generally of coverage from “plant” to “establishments” and then later to “undertakings”. As a consequence, it is said that not only the text of the Vehicle Award (namely the tripartite phrase) but the award history supports Avis’ construction, namely that the Vehicle Award’s reach extends to a part of an establishment or part of an activity – it need not be an establishment principally connected or concerned but it is sufficient if an undertaking is principally connected or concerned.

28    Further, it is consistent with the broad interpretation adopted by Buchanan J in Fair Work Ombudsman v Crystal Carwash Café Pty Ltd [2013] FCA 1396 at [13], with respect to “maintaining” said to not be restricted to “maintaining mechanical serviceability”. It was submitted that his Honour eschews a narrow or technical approach, which is in effect what is being adopted by the FWO now as to the phrase “repair and servicing” or “servicing”.

29    By contrast, the FWO submitted that the language of the coverage clause is not technical or complex nor does it necessitate a descent into the context. It is submitted that the text of the Vehicle Award proceeds according to a sensible and coherent view of the application of the award – that coherence is said to be that the Vehicle Award only extends to that portion of the motor vehicle rental business involved in “repair and servicing”, for example, to the repair workshops not wash bays or other areas. It is submitted that the ordinary meanings of the word “service” (and as found by authority see for example Fair Work Ombudsman v Kingsford Carwash Pty Ltd [2012] FMCA 464) does not include the cleaning of a car, or checks for damage by unskilled workers. Even if it were accepted that VSAs (or other employees) occasionally performed some servicing (as the evidence reveals at a very low level), it would not follow that Mr Basile’s workplace was principally concerned with the repair and servicing of vehicles – the hire of vehicles is the principal (chief, foremost or main) concern of Avis’ rental establishments. Further, according to the FWO, the fact that there is a repair workshop located in the vicinity of Mr Basile’s work locations at Brisbane Airport does not require any different conclusion. The FWO submitted that there are apt classifications under the Retail Award and particularly so for Rovers.

30    For the following reasons, I accept Avis’ construction. It is my view that the 2010 and 2020 Vehicle Awards do cover the employees performing the work of VSAs and Rovers.

Consideration

31    Principles governing the construction of industrial instruments have been distilled in a number of Full Court decisions, including Australian Workers’ Union v UGL Resources (Contracting) Pty Ltd [2025] FCAFC 107 at [12], concurring with and summarising the principles as contained in the Full Court decision in James Cook University v Ridd [2020] FCAFC 123; 278 FCR 566 at [65]:

(1)    The starting point is the ordinary meaning of the words, read as a whole and in context (including the industrial context), citing City of Wanneroo v Holmes (1989) 30 IR 362 at 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 at [53]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 at [197].

(2)    A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a practical bent of mind, citing Kucks v CSR Ltd [1996] 66 IR 182 at 184; Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16]; WorkPac at [197].

(3)    The interpretation turns upon the language of the particular agreement, understood in the light of its industrial context and purpose, citing Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 at [2].

(4)    Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include ideas that gave rise to an expression in a document from which it has been taken, citing City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union at [53]; Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer (Cth) (1998) 82 FCR 175 at 178.

(5)    Recourse may be had to the history of a particular clause, citing Short at 518.

(6)    A generous construction is preferred over a strictly literal approach, but the instrument should make sense according to the basic conventions of the English language, citing Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499 at 503-4; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union at [57], City of Wanneroo v Holmes at 380.

(7)    Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry, citing City of Wanneroo v Holmes at 378-9; WorkPac at [197].

32    Much was made by Avis, to aid its construction, that the 2010 and 2020 Vehicle Awards are “industry awards” and the classifications under the 2010 and 2020 Vehicle Awards are apt for employees in these positions. It may be accepted that these two facts are relevant in informing the context.

33    The relevance of “context”, most particularly by resort to the historical evolution of awards, will be considered further below. It is worth noting at this juncture that context is not an end in itself, the language of the instrument remains the starting and end point: King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 at [123].

34    The construction question posed by the 2010 and 2020 Vehicle Awards is whether Avis has established that that portion of its establishment, plant or undertaking in which the VSAs and Rovers were engaged is principally concerned with or connected with the repair or servicing of motor vehicles.

35    It is my view, for the reasons which follow, that part, and only that part, of Avis’ establishment, plant or undertaking principally concerned with or connected with the repair or servicing of motor vehicles is covered by the 2010 and 2020 Vehicle Awards not the entirety of its operation.

36    The preferred construction of the 2010 and 2020 Vehicle Awards reveals that it was intended that the awards cover only this portion of a car rental business. The evidence establishes that employees engaged as VSAs and Rovers are engaged in that portion of Avis’ “establishment, plant or undertaking” that is principally connected or concerned with the repair and servicing of motor vehicles. Both callings undertake steps ancillary to (that is supportive, connected or concerned with) the repair and servicing of motor vehicles. The triaging of vehicles (for repair and servicing) forms part of the “repair and servicing” of vehicles.

37    It may be accepted that cl 4.1(a) of the Vehicle Award 2010, lists a large number of activities, including “selling”, “distributing”, “storage”, “towing”, but car hire or rental is not one of them.

38    The text reveals the express contemplation of coverage of an establishment, plant or undertaking principally concerned or connected with “repair and servicing” in a “car rental” business: cl 4.1(d). This emphasises the intention to exclude such an operation (establishment, plant or undertaking) from cl 4.1(a). If it were captured by cl 4.1(a), because it includes servicing, there would be no need for cl 4.1(d). Car hire is not captured, except in respect of the part of the business (as submitted by the FWO if there is one), which is sufficiently substantial to be characterised as an establishment, undertaking or plant, which is principally concerned or connected with repair and servicing of motor vehicles.

39    The FWO appeared to concede at the hearing that this would include a dedicated repair workshop. As to repair workshops, the FWO submitted that the evidence demonstrated that they were organisationally distinct from rental locations. Relying on the following paragraphs of Mr Evans’ affidavit, the FWO submitted that repair workshops were generally located separately from rental locations (except at Maroochydore) and were responsible for preventative maintenance and small repairs, rather than major repair work or warranty repairs:

[40]    All repair workshops are located in facilities that are separate to vehicle rental location (i.e., they are not part of the same building or address) except for Apex Maroochydore, which has a repair workshop on-site.

[41]    The repair workshops exclusively service AB Group's vehicles and have not ever been revenue-generating. They predominantly look after oil changes and other preventative maintenance services, as well as small repairs such as changing tyres, balancing tools or system resets.

40    The FWO also noted Mr Evans’ evidence that warranty repairs had previously been undertaken but were no longer performed, and referred to Ms Sullivan’s evidence that approximately 70 per cent of repair and servicing work was undertaken in the workshops, with larger repairs outsourced. On that basis, the FWO submitted that Avis’ business was properly understood as comprising three distinct operational components: national and state offices, rental locations, and repair workshops, with the evidence disclosing no meaningful interaction between rental locations and workshops.

41    Much was made by the FWO of the use of the conjunction “and” as opposed to “or” in cl 4.1(d). However, it is my view that not much can be made of this. This is because consideration must be given to the import of the entire clause. The text must be read as (a) intending to include an “establishment, undertaking or plant”; (b) that is “principally connected or concerned with” the “repair and servicing” of motor vehicles.

42    It is my view that the work undertaken by the VSAs and Rovers is principally connected or concerned with “the repair and servicing” of motor vehicles, such that it falls within that part of Avis’ establishment, plant or undertaking. The word “servicing” (of motor vehicles), in ordinary usage, connotes “a regular inspection and maintenance of a vehicle or other machine” and “to make fit for service; restore to condition for service”: Compact Oxford English Dictionary of Current English (3rd ed, 2008) ‘service’ (def 11); Macquarie Dictionary (9th ed, 2023) ‘service’ (def 26). I accept the FWO’s construction that the phrase “the repair and servicing of motor vehicles” would be understood in context as a phrase capturing both regular or scheduled and ad hoc or reactive inspection, maintenance and repair. However, I do not accept that when reading the entirety of the import of the clause, one does not include in the establishment, plant or undertaking those callings ancillary to the same, namely “cleaning a car, or checks for damage by unskilled workers”. Further, I do not accept that this is a comprehensive description of the work performed by both callings.

43    The FWO submitted that, if it were accepted that VSAs (or other employees) occasionally performed some servicing “at a very low level”, it would not follow that Mr Basile’s workplace was principally concerned with the repair and servicing of vehicles. The FWO also submitted that sometimes the VSAs drove cars around all day and were not at the wash bays. The FWO submitted that the principal — that is chief, foremost or main — concern of Avis’ rental establishments is the hire of vehicles. The FWO submitted that any servicing which occurs at or around the rental outlets is an ancillary or incidental concern. I do not accept this submission for a number of reasons.

44    The Agreed Facts reveal that the primary duties of VSAs, at all sites, include, amongst other tasks, cleaning the interior and exterior of the vehicles and checking vehicles on return for damage, fuel levels, tyre pressure, tread depths and windscreens. Similarly, Rovers are required to check in returned vehicles using a handheld electronic device to register the car, record the kilometres on the vehicle and fuel levels, and to perform a walk-around inspection to check for damage and lost property, taking photos as required. Their liaison with customers concerns any issues with the vehicles, damage and refuelling, and referring damage related matters as appropriate.

45    Accordingly, it appears very clear that a material part of the work of both VSAs and Rovers is to perform a form of triage of the vehicles to determine whether servicing and repair is necessary. This is necessarily ancillary to, but a vital part of that part of Avis’ operation concerned with “repair and servicing” of motor vehicles. As to the potential demarcation between “servicing” and “maintenance” there are no clear lines. Part of the “servicing” of a vehicle may include pumping up the tyres, putting more oil in and refilling the windscreen washer water bottle. Each of these tasks are performed by the VSA.

46    I do not consider that it is necessary to establish “any independent quality of the wash bay” so that allows it to be “the criterion for award coverage”. Rather, it is my view that one considers the aspects of the “employer’s establishment, plant or undertaking” and what it is principally connected to or concerned with, in circumstances where the framers of the Vehicle Award expressly intended that it would cover that part of the business “principally connected or concerned with” the repair and servicing of motor vehicles.

47    Avis sought to deploy, by analogy, the broad import given by Buchanan J to “maintaining” in Crystal Carwash at [12]-[13]. I do not accept this submission. However, another aspect of his Honour’s reasoning is consistent with the need for the Court to construe the whole of the clause. That is, not solely the words “repair and servicing” but whether the employer’s establishment, plant or undertaking is principally connected or concerned with the “repair and servicing” of motor vehicles. It includes not only “concerned” but alternatively “connected with”.

48    To return to the FWO’s submission above, it may be accepted that the principal — that is chief, foremost or main — concern of Avis’ rental establishments is the hire of vehicles. However, it is very clear that the Vehicle Award contemplates that a portion of rental establishments are caught within the coverage provision. I do not accept that any servicing (as well as the activities of VSAs and Rovers) which occurs at or around the rental outlets is an ancillary or incidental concern such that it does not fall within the coverage clause. Those activities are “connected”, in a material way, with the relevant task, “the repair and servicing” of motor vehicles.

49    I note that the FWO correctly conceded that Avis’ repair workshops are covered by the 2010 and 2020 Vehicle Awards. The FWO also correctly conceded that those employed in the workshops may be involved in unskilled cleaning and detailing tasks. It must also be accepted that those employed in the workshops would be involved in the triaging tasks that are undertaken by the VSAs and Rovers. I do not consider that much can be made of work locations of VSAs (wash bays and car parks) and Rovers (car parks), save for identifying the obvious – the relevant work being undertaken involves motor vehicles.

50    As to reporting lines and customer service interactions, the FWO asked that the Court review Mr Basile’s contract and the job descriptions which were said to demonstrate that Avis’ operations were customer-facing and integrated within the car rental business, rather than constituting a standalone vehicle servicing undertaking. In support of that contention, the FWO pointed to an award received by Mr Basile recognising his customer service performance, his 2020 VSA offer of employment indicating that he reported to the Airport Manager and was based at Brisbane Airport and job descriptions showing that both VSAs and Vehicle Return Agents (Rovers) remained within the same reporting structure. However, again, the submission missed the mark and a consideration of the entirety of the text of the provision.

51    It may be accepted that account should be taken of the broader context (including the historical evolution of the Vehicle Awards). However, I am of the view that not much can be made of the award history to aid either party’s construction.

52    Avis submitted that the award history forms part of the surrounding circumstances which informs the meaning of the text of the two coverage clauses. In essence, from this history, it is said to have been revealed that the predecessor Vehicle Awards coverage clauses continued to expand by deployment of the words ultimately taken up “establishment, plant or undertaking”.

53    The first award in 1935 that the Court was taken to was the Motor Body and Coach Building Award (1935) 35 CAR 599 at 637. Its coverage provision, “Area of Award” was as follows:

36. This award, except as hereinafter provided, shall be binding on employer claimants and respondents engaged in the manufacturing, assembling or repairing of carriages, carts, wagons, trucks, motor cars, motor cycles, railway cars, tram cars, side-cars, aircraft and other vehicles used in air transit and all other vehicles or parts thereof in wood or metal.

Employers, engaged in the manufacturing and/or repairing of metal parts used in such industries at the date of this award or hereafter bound by the provisions of the Metal Trades award of 1935, are exempted from this award.

54    Accordingly, it reveals that initially the focus was on the “engagement” of the employer and there was a demarcation between manufacturing and repairing of vehicles and that of metal parts.

55    The following year, in 1936, in Motor Body and Coach Building Award 1935 (as varied 1936) (1936) 36 CAR 35 at 36 the second paragraph containing the metal parts exemption was amended in the following form:

Employees wherever engaged in the making and repairing of motor engines or parts of motor engines used in motor cars, motor omnibuses, motor cycles or other motor driven vehicles or in aircraft or the making of metal motor body accessories in other than motor building establishments are exempted from this award.

56    The concept of “establishment” was first introduced in this exemption to confine it to employees engaged in the motor engine and parts activities that were not part of “motor building establishments”.

57    In 1938, in Re Motor Body and Coach Building Awards (1938) 39 CAR 290 at 291 the coverage provision was further refined as follows:

36. This award shall be binding on employer claimants and respondents as to every operation carried on within, or in connexion with a plant principally concerned with the manufacturing, assembling or repairing of carriages, carts, wagons, trucks, motor cars, motor cycles, railway cars, tram cars, side-cars or other vehicles, or parts or components thereof in wood, metal and/or other materials; and in other plants it shall govern such operations except the making or repairing of motor engines or parts thereof.

Provided that this award shall not apply to an employer who at the date of this variation is engaged in the manufacturing and/or assembling of metal parts components or accessories of motor vehicles and is observing the terms and conditions of the Metal Trades award in relation thereto.

(emphasis added and citation omitted)

58    The evolution revealed the introduction of the concept of “plant” and being “principally concerned”.

59    In 1953, in Re Vehicle Industry Award (1953) 76 CAR 280 at 403, the clause was further expanded in the following form:

AREA OF AWARD

36. (a) This award shall be binding on employer claimants and respondents as to every operation carried on within, or in connection with a plant principally concerned with the manufacturing, assembling or repairing of carriages, carts, wagons, trucks, motor cars, motor cycles, railway cars, tram cars, side-cars or other vehicles, or parts or components thereof in wood, metal and/or other material; and in other plants it shall govern all such operations except the making or repairing of motor engines or parts thereof.

Provided this award shall not apply to an employer who on the 19th day of May, 1938, was engaged in the manufacturing and/or assembling of metal parts, components or accessories of motor vehicles and is observing the terms and conditions of the Metal Trades award in relation thereto.

60    It is apparent that the award then introduces the concept of “operation carried on within” a “plant”.

61    In 1968, in Re Vehicle Industry Repair, Services and Retail Award (1968) 125 CAR 977 at 978, the provision, now entitled “Incidence of Award” picked up “operation”, “establishment” and “undertaking”:

3 – INCIDENCE OF AWARD

(a) This award shall apply in the States of New South Wales, Victoria, Queensland, South Australia and Tasmania:

(i) to every operation carried on within or in connection with the establishment of an employer whose undertaking is principally concerned with the selling distributing repairing maintaining wrecking and/or servicing of motor vehicles of all kinds caravans trailers or the like and equipment or parts or components thereof or the supply of running requirements for such vehicles and the like; and

(ii) in other establishments principally concerned with the selling distributing repairing maintaining wrecking and/or servicing of motor vehicles of all kinds caravans trailers or the like and equipment or parts or components thereof or the supply of running requirements for such vehicles and the like to every operation therein coming within classifications numbered 1 to 36 inclusive appearing in sub-clause (a) of clause 8 of this award or determined pursuant to clause 11 of this award.

(b) All references to the industry or callings set out in this clause wherever expressed may be read either alternatively or collectively in any combination whatsoever.

(c) From the date of the coming into operation of this award any other award made under the Conciliation and Arbitration Act 1904-1968 which might otherwise have applied to the employers and employees covered by this award shall be as a term and condition of this award excluded from applying to such employers and employees.

62    Again, the award contemplated the coverage of an “operation carried on within” or “in connection with” to the “establishment”, but where “undertaking” appears to be linked in a broad sense to the task of the enterprise, rather than discrete tasks within the establishment.

63    By 1970, in Re Vehicle Industry Repair, Services and Retail Award (1970) 134 CAR 313 at 315 (1970 Award) the provision was further varied in the following form:

3—INCIDENCE OF AWARD

(a) This award shall apply in the States of New South Wales, Victoria, Queensland, South Australia and Tasmania:

(i) to every operation carried on within or in connection with the establishment of an employer whose undertaking is principally concerned with the selling distributing repairing maintaining towing wrecking servicing and/or parking of motor vehicles of all kinds caravans trailers or the like and equipment or parts or components thereof or the supply of running requirements for such vehicles and the like; and

(ii) in other establishments principally concerned with the selling distributing repairing maintaining towing wrecking servicing and/or parking of motor vehicles of all kinds caravans trailers or the like and equipment or parts or components thereof or the supply of running requirements for such vehicles and the like to every operation therein coming within the classifications or classes of work referred to in sub-clause (a) of clause 8 or determined pursuant to clause 11 of this award; and

(iii) to every operation concerned with the repair and servicing of motor vehicles in the establishment of an employer not falling within paragraphs (i) and (ii) hereof but who is engaged in the motor vehicle rental business.

(b) All references to the industry or callings set out in this clause wherever expressed may be read either alternatively or collectively in any combination whatsoever.

(c) From the date of the coming into operation of this award any other award made under the Conciliation and Arbitration Act 1904-1970 which might otherwise have applied to the employers and employees covered by this award shall be as a term and condition of this award excluded from applying to such employers and employees.

64    The following amendments are noted: (a) the activities of “towing” and “parking” of vehicles are included; and (b) “every operation concerned with the repair and servicing of motor vehicles in the establishment” of an employer “engaged in the motor vehicle rental business”. It appears that the 1970 Award deliberately confined that aspect of the employer “in the motor vehicle rental business”, namely the “operation” within the “establishment” “concerned with the repair and servicing”. However, it also reveals that the framers contemplated coverage of a part of motor vehicle rental business.

65    It is my view that not much can be made of the broader context (namely the historical evolution of the Vehicle Award) when construing the relevant clauses of the two modern awards. It appears that it was allowing for a part of a “vehicle rental business” to be covered by the Vehicle Award, rather than “every operation carried on within or in connection” within an establishment. Further, nothing can be gleaned from the use of the conjunction “and” in the phrase “concerned with repair and servicing”, and the use of “and/or” above.

66    I accept that some account must be given to the fact that the award modernisation’s objective was to create a set of modern awards which avoid overlapping coverage of a particular employee or employer by multiple awards. It was submitted by the FWO that Avis has a large cohort of RSAs in its business for which there is no appropriate classification in the 2010 and 2020 Vehicle Awards. However, I note that the text of the 2010 and 2020 Vehicle Awards makes clear that the coverage provision is directed to a part of but not all of a car rental business. It is clear that the framers understood the consequence, including possible overlap or coverage by multiple awards.

67    Further, in aid of Avis’ textual analysis, it was submitted that the most appropriate classification for the two roles is under the Vehicle Award. I agree. I do not accept the FWO’s characterisation of the VSA and Rover tasks as being most appropriately classified under the definition of a Retail Employee Level 1 under the Retail Award 2020.

68    The VSAs clean, detail, perform routine low-level maintenance and/or servicing tasks and triage the cars for further servicing and repairs. It is my view that VSAs are covered by the classifications contained in Level 1 R1 (and R2, after three months of service) of the 2010 and 2020 Vehicle Awards, including the role of “Car cleaner/washer”.

69    As already adverted to above, Rovers are also engaged in triaging tasks, checking for fuel levels, body damage and operational issues to assist with fleet management tasks. Those tasks are undertaken by “Car cleaner/washer”, “Detailer – other”, and “Driveway attendant” or “Employee not elsewhere prescribed”.

70    Accordingly, by operation of the exclusionary effect of each of the coverage provisions in the 2010 and 2020 Vehicle Awards, these Awards apply to Avis (as found to be engaged in the relevant industry), where the relevant employees are engaged in roles covered by the classification structure, to the exclusion of any other modern award.

Conclusion

71    For these reasons, in my view on the facts agreed by the parties, the 2010 and 2020 Vehicle Awards apply to the employment by Avis of employees employed in the positions of VSA and Rover during the relevant periods proposed by the applicant in their originating application, save for the fact that the Vehicle Award 2010 did not commence until 1 January 2010 and any declarations can only apply from that point in time. I will make declarations accordingly.

Associate:

Dated:    3 November 2026