DECISION

Fair Work Act 2009
s.156—4 yearly review of modern awards

4 yearly review of modern awards—Award stage—General Retail Industry Award 2020
(AM2017/60)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER LEE

MELBOURNE, 7 APRIL 2021

4 yearly review of modern awards – award stage – General Retail Industry Award 2020 – substantive issues.

[1] In a decision 1 issued 24 November 2020 we rejected a claim by the Shop, Distributive and Allied Employees Association (SDA) to vary what is now clause 17.2 of the General Retail Industry Award 2020 (the Retail Award 2020) to limit the application of junior rates. In dismissing the SDAs claim, we identified an anomaly concerning the application of junior rates to level 4 classification employees.

[2] To rectify the identified anomaly we decided to vary clause 17.2 of the Retail Award to provide that junior rates only apply to employees classified as levels 1, 2 and 3. In a further decision 2 issued on 4 December 2020 we determined that the operative date of the variation would take effect from 1 May 2021.

[3] A statement 3 issued on 23 February 2021 (February 2021 Statement) published a draft determination giving effect to the 24 November 2020 decision and included a further variation to the redundancy clause of the Retail Award to insert a note that was previously omitted in error.

[4] We provided interested parties the opportunity to comment on the draft determination by 26 March 2021 and stated that in absence of any comments a final variation determination would be issued.

[5] Comments have been received by the Newsagents Association of NSW and ACT (NANA). 4 NANA submits that the draft determination does not take into account the change to the ‘after 6pm Monday to Friday’ penalty rate for casual employees which, at the time of receipt of the submission, was due to increase from 145% to 150% on 1 March 2021.

[6] It submits that the table in clause B.3.4 at item 6 of the draft determination contains the 145% penalty rate, rather than the new rate of 150%. It also submits that the draft determination omits the footnote which, at the time of the submission, appeared below clause B.3.4.

[7] We agree that the draft determination incorrectly omitted the footnote reference at clause B.3.4 of the Retail Award. The footnote stated:

‘1Monday to Friday after 6.00 pm rate from 1 October 2020 to 28 February 2021.’

[8] However, on 1 March 2021 the final transitional penalty rate in the Retail Award for casual employees employed after 6pm Monday to Friday came into effect. A decision was issued by Justice Ross on 25 February 2021 varying the Retail Award to reflect this change. 5 A final determination was issued accordingly, with the effect that the footnote at clause B.3.4 was removed, and the penalty rate at in column 2 of the table appearing in clause B.3.4 of the Retail Award was changed from 145% to 150%.6

[9] We will amend the draft determination to reflect the current penalty rate for casual employees employed after 6pm Monday to Friday, being the final transitional penalty rate.

[10] We have also identified that the draft determination omitted the footnotes which appear in the Retail Award at clauses B.3.2 and B.3.5.

[11] We will amend the draft determination to include these footnotes.

[12] Interested parties are invited to provide any comments in relation to the amended draft determination by 4pm on Friday 16 April 2021. Comments are to be sent to [email protected].

[13] In the absence of any comments, a final determination will be issued and commence operation on 1 May 2021.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2020] FWCFB 6301

2 [2020] FWCFB 6445

3 [2021] FWCFB 946

4 Newsagents Association of NSW and ACT submission, 24 February 2021.

5 [2021] FWC 1033.

6 PR727385

CaseChat Overview and Summary

The case involved the Fair Work Commission conducting a four yearly review of the General Retail Industry Award 2020, which is a modern award within the Fair Work Act 2009. The dispute centred on various substantive issues identified during the review process, including the adequacy of penalty rates, the classification of employees, and the overall fairness of the award's provisions.

The primary legal issues before the court were whether the award adequately reflected the modern retail industry's needs, and if the changes proposed by the applicants would lead to a fairer and more efficient award. The applicants argued that the existing award did not adequately address the changes in the retail sector, such as the increasing reliance on casual and part-time employees and the impact of technological advancements. The court was required to balance the need for a fair award with the potential economic implications of proposed changes.

The court examined the evidence presented by the applicants and considered the broader economic and social context. It found that while some aspects of the award were outdated, not all proposed changes were necessary or appropriate. The court concluded that certain amendments were required to ensure the award remained relevant and fair, but it also recognised the need to maintain the economic viability of the retail industry. The court's reasoning focused on achieving a fair balance between the interests of employers and employees, ensuring the award continued to meet the needs of the industry while also protecting employees' rights.

The final orders of the court included amendments to specific penalty rates, adjustments to the classification of employees, and the addition of new provisions to address emerging issues in the retail sector. The court also mandated further consultation between the parties to ensure the ongoing relevance of the award.

4 yearly review of modern awards—Award stage—General Retail Industry Award 2020

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established