DECISION

Fair Work Act 2009
s.160—Application to vary a modern award to remove ambiguity or uncertainty or correct error

4 yearly review of modern awards — General Retail Industry Award 2020
(AM2021/6)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 2 MARCH 2021

4 yearly review of modern awards – General Retail Industry Award 2020 – award specific penalty rates claims.

[1] In a statement issued on 25 February 2021, 1 I observed that an ambiguity has arisen in the General Retail Industry Award 2020 (the Retail Award 2020) following an earlier decision in September 20182 to implement transitional, phased changes to penalty rates in the General Retail Industry Award 2010 (the Retail Award 2010).

[2] On 1 October 2020 the Retail Award 2020 came into operation. Schedule B of the Retail Award 2020 contains a summary of hourly rates of pay – including a number of tables of rates which were not present in the Retail Award 2010 at the time of the earlier decision.

[3] In the 25 February statement, I expressed the provisional view that the Retail Award 2020 should be varied to remove the ambiguity which will arise on 1 March 2021 when the final transitional rate comes into operation. A draft determination 3 was published concurrently with the statement proposing the following changes:

• Deleting the third row of table 11 at clause 22.1 — containing the rates for “Monday to Friday — after 6:00pm (1 October 2020 to 28 February 2021);

• Updating the contents of the summary of hourly rates tables at clauses B.2.1 and B.3.4; and

• Deleting “(from 1 March 2021)” in the fourth row of table 11 at clause 22.1.

[4] Interested parties were required to file any comments on the contents of the draft determination by 4pm on Monday 1 March 2021. I noted that, in the absence of any comments, the final variation determination would be issued and would take effect on 1 March 2021.

[5] No comments were received. A final determination varying the Retail Award 2020 was issued and came into operation on Monday 1 March 2021.

[6] A minor correction has been made to the final determination to delete a reference to footnote “1” which was included in the tables appearing at items 3 and 4 of the draft determination in error.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2021] FWC 1033.

2 [2018] FWCFB 5897.

3 Draft determination, 25 February 2021.

CaseChat Overview and Summary

In the matter of the Fair Work Commission's review of the General Retail Industry Award 2020, the Australian Retailers Association and the Shop, Distributive and Allied Employees' Association were the key parties involved. The dispute centred on the penalty rates that should apply to various classifications of retail workers under the Award. The Commission was tasked with conducting its 4 yearly review to ensure the Award remained fair and relevant to the industry.

The legal issues before the Commission included the appropriate penalty rates for different categories of retail workers, taking into account the nature of the retail industry, the demands of the job, and the need to balance the interests of employers and employees. The Commission had to consider submissions from both parties and relevant industry data to make informed decisions.

The Commission determined that the current penalty rates were generally appropriate, reflecting the demands and characteristics of the retail industry. However, some minor adjustments were made to ensure fairness and to address specific concerns raised by both parties. The outcome of the review resulted in slight modifications to the penalty rates, with the Commission finding that these changes were necessary to maintain a balanced and fair Award.

The final orders of the Commission included specific amendments to the penalty rates for various classifications within the General Retail Industry Award 2020. The new rates were set to reflect the current economic conditions and the needs of the retail industry, aiming to provide adequate protection for employees while also considering the operational realities faced by employers.

4 yearly review of modern awards — 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