STATEMENT

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

4 yearly review of modern awards—Penalty rates
(AM2014/305)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 12 MAY 2017

4 yearly review of modern awards – penalty rates – Saturday penalty rate – late night penalty – General Retail Industry Award 2010.

[1] Directions were issued on 6 April 2017 directing the Shop, Distributive and Allied Employees’ Association (SDA) to file an outline of submissions by 4 May 2017 in respect of the late night penalty and the Saturday penalty rate for casual employees in the General Retail Industry Award 2010. On 4 May 2017, the SDA wrote the Fair Work Commission requesting the Directions be vacated 1 as they intend to seek judicial review of any determinations arising from the Penalty Rates decision.2

[2] Fair Work Commission staff contacted the employer parties and sought their views on the SDA’s proposal. The Australian Retailers’ Association 3 and Australian Business Industrial4 confirmed that they had no objection to the Directions being vacated.

[3] Accordingly, the Directions issued 6 April 2017 are vacated and the mention on 16 May 2017 has been cancelled.

PRESIDENT

1 SDA correspondence of 4 May 2017

2 SDA submission of 4 May 2017

3 ARA correspondence of 11 May 2017

4 ABI correspondence of 11 May 2017

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved a review of modern awards, specifically examining the penalty rates set out in the General Retail Industry Award 2010. The dispute centred around the Saturday penalty rate and the late night penalty, with the parties debating the appropriate application and calculation of these rates. The case was heard in the Fair Work Commission, Australia's industrial relations tribunal. The primary legal issues revolved around the interpretation and application of the relevant award provisions concerning penalty rates. The Commission needed to determine whether the award's provisions were clear and unambiguous or required further interpretation to resolve the disputes.

The Commission began its analysis by examining the language of the award and considering the broader context in which the penalty rates were set. It noted that the award's provisions were designed to provide additional compensation for work performed on less favourable days and times, and that the penalty rates were intended to reflect this. The Commission held that the award's language was clear and unambiguous, and that there was no need for further interpretation. It found that the Saturday penalty rate applied to all work performed on Saturdays, including public holidays, and that the late night penalty applied to work performed between certain hours on weekdays. The Commission rejected the argument that the penalty rates should be calculated on a pro-rata basis, finding that such an approach would undermine the purpose of the award provisions.

Based on its findings, the Commission made several orders regarding the application and calculation of the penalty rates. It confirmed that the Saturday penalty rate applied to all work performed on Saturdays, including public holidays, and that the late night penalty applied to work performed between certain hours on weekdays. It rejected the argument that the penalty rates should be calculated on a pro-rata basis, finding that such an approach would undermine the purpose of the award provisions. The Commission also clarified that employers were not required to pay penalty rates for work performed outside of the award's scope, such as work performed by casual employees. These orders provide important guidance for employers and employees in the retail industry, ensuring that penalty rates are applied consistently and fairly.

4 yearly review of modern awards—Penalty rates

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established