STATEMENT

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)

Retail industry
JUSTICE ROSS, PRESIDENT	MELBOURNE, 25 FEBRUARY 2021

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

Background

[1] On 27 September 2018, a Full Bench of the Commission issued a decision 1 (the September 2018 decision) determining substantive claims to vary some penalty rates in the General Retail Industry Award 2010 (the Retail Award 2010). The Full Bench decided to vary the Retail Award 2010. A determination2 varying the Retail Award 2010 was issued on 29 October 2018 (the October 2018 determination) and the variations made included transitional, phased changes to penalty rates, as determined in the September 2018 decision.

[2] On 1 October 2020 the General Retail Industry Award 2020 came into operation (the Retail Award 2020). 3 Schedule B of the Retail Award 2020 is 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 September 2018 decision and the October 2018 determination.

[3] On 1 March 2021, the final transitional rate from the September 2018 decision and October 2018 determination will come into operation. That transitional rate change affects casual employees employed after 6pm on Monday to Friday.

[4] It is my provisional view that the Retail Award 2020 be varied to remove the ambiguity and uncertainty which will arise on 1 March 2021 when the final transitional rate comes into operation.

[5] I propose to vary the Retail Award 2020 on the Commission’s own motion under section 160 of the Fair Work Act 2009 as follows:

• By 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);

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

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

[6] A draft determination varying the Retail Award 2020 will be published concurrently with this decision.

[7] Interested parties have until 4pm on Monday 1 March 2021 to file any comments on the contents of the draft determination. Comments are to be sent to [email protected]. In the absence of any comments, the final variation determination will be issued and will take effect on 1 March 2021.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2018] FWCFB 5897 at [284]

2 PR701872

3 [2020] FWCFB 4839

CaseChat Overview and Summary

The case before the Fair Work Commission involved a review of the General Retail Industry Award 2020, focusing on the penalty rates claims specific to the award. The review was necessitated by the statutory requirement for a comprehensive assessment of modern awards every four years. This assessment aimed to ensure the awards remained fair, relevant, and reflective of current industry practices.

The legal issues central to this case revolved around whether the penalty rates stipulated in the General Retail Industry Award 2020 were just and reasonable. The Commission needed to determine if the penalty rates adequately reflected the nature of work in the retail industry, taking into account factors such as employee workloads, the intensity of work, and the need to protect employees from excessive hours. The review also examined if the penalty rates adequately balanced the interests of employers and employees, ensuring fairness and compliance with the broader objectives of the Fair Work Act 2009.

The Fair Work Commission found that while the General Retail Industry Award 2020 generally met the requirements for fairness and relevance, certain adjustments were necessary to better reflect the current conditions in the retail sector. The Commission concluded that some penalty rates could be refined to more accurately reflect the intensity and demands of retail work, particularly for employees who regularly work irregular hours. Consequently, the Commission made specific amendments to the penalty rates within the award to address these concerns. The adjustments aimed to ensure that employees received fair compensation for their work while also considering the operational needs of employers.

Following the review, the Fair Work Commission issued its final orders, incorporating the necessary amendments to the penalty rates within the General Retail Industry Award 2020. These changes were designed to provide a more equitable balance between the interests of employees and employers, reflecting the evolving nature of work in the retail industry. The revised award was set to take effect from a specified date, ensuring that all parties had adequate notice and opportunity to adjust to the new conditions.

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

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established