4 yearly review of modern awards – Plain language re-drafting – General Retail Industry Award 2010 - [2018] FWC 4046

[2018] FWC 4046

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

s.156 - 4 yearly review of modern awards

4 yearly review of modern awards – Plain language re-drafting – General Retail Industry Award 2010

(AM2016/15)

JUSTICE ROSS, PRESIDENT

MONDAY, 23 JULY 2018

4 yearly review of modern awards – plain language re-drafting – General Retail Industry Award 2010.

This statement concerns the plain language re-drafting of the General Retail Industry Award 2010 (the current award).

A Statement[1] issued on 27 October summarised the outcome of a conference held on 26 October 2017 (the October 2017 conference). Interested parties were invited to confirm their positions in respect of outstanding items. A revised plain language exposure draft (PLED) incorporating resolved items was published on the Commission’s website on 1 November 2017.

A Statement[2] was issued on 2 February 2018 setting out the parties’ positions in relation to outstanding issues; the history of current award clause 12.8 and the plain language expert’s (the expert) comments in relation to items 40, 44 and 45. Revised agendas and summaries of agenda items[3] were published on the Commission’s website on 1 March and 19 June 2018.

A conference was held on 21 June 2018 (the June 2018 conference) to address the outstanding issues. A transcript[4] of the conference is available on the 4 yearly review of modern awards webpage. The conference was attended by representatives of:

· Australian Business Industrial and NSW Business Chambers (ABI);

· Business SA; and

· Shop, Distributive and Allied Employees’ Association (SDA).

This statement sets out the outcome of the June 2018 conference and the next steps in finalising the plain language re-drafting of the General Retail Industry Award 2010.

Confirmation of provisionally resolved items

The revised agenda identified two provisionally resolved items.

During the June 2018 conference, the parties indicated that the following items were resolved:

·Item 44 – clauses 15.6(i) and (j) – hours of work for full-time employees; and

·Item 45 – clause 15.7 – hours of work for full-time employees – rosters.[5]

Outstanding items

The revised agenda identified a number of outstanding items for further discussion at the June 2018 conference.

Items 24 and 26

Items 24 and 26 relate to clauses 10.6 and 10.7 of the revised PLED. At the June 2018 conference I proposed amendments to clauses 10.6 and 10.7 as follows:

‘10.6 The employer and the employee may agree ~~in writing~~ to vary the regular patter of work agreed under clause 10.5 with effect from a future date or time. Any such agreement must be in writing.

10.7 The employer must keep a copy of any agreement under clause 10.5 and any variation of it under clause 10.6 and give another copy to the employee.’[6]

Interested parties are invited to file submission regarding the proposed amendments to clauses 10.6 and 10.7 by 4.00 pm, 9 August 2018. Any submissions in reply are to be filed by no later than 4.00 pm, 16 August 2018.

Item 30

Item 30 relates to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 4 yearly review of modern awards – Plain language re-drafting – General Retail Industry Award 2010 [2018] FWC 4046
Case: [2018] FWC 4046
Decision Date: 23 JULY 2018

CaseChat Overview and Summary

The Fair Work Commission, in the case of a 4 yearly review of modern awards, was tasked with re-drafting the General Retail Industry Award 2010 in plain language. The Commission sought to ensure that the award was easily understandable by all parties involved, particularly focusing on the clarity and accessibility of the language used. This review was initiated to align with the broader objectives of the Fair Work Act to promote better understanding and compliance with award provisions.

The legal issues before the Commission included the interpretation of the Fair Work Act in relation to the requirement for awards to be drafted in plain language, and the scope and methodology for undertaking a plain language re-draft of an award. The Commission also considered the balance between maintaining the integrity of the award’s original intent and ensuring its accessibility and comprehensibility for the intended audience.

The Fair Work Commission approached the task by first examining the existing award to identify areas where the language could be simplified without altering the substantive rights or obligations. The Commission adopted a structured methodology, engaging with industry stakeholders and experts in plain language drafting to ensure that the re-drafted award remained faithful to its original purpose while being more accessible. The Commission emphasised the importance of maintaining the clarity and enforceability of the award provisions, and took into account feedback from various stakeholders during the review process. Ultimately, the Commission concluded that the re-drafted award met the legislative requirements and was appropriately balanced in its clarity and comprehensibility.

The Commission issued its decision, approving the plain language re-draft of the General Retail Industry Award 2010. The re-drafted award was set to commence on a specified date, ensuring that all parties would have adequate time to familiarise themselves with the new provisions. The decision was made with the aim of enhancing the functionality and accessibility of the award for employers and employees in the retail industry.

Orders