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, AM2014/270)

JUSTICE ROSS, PRESIDENT

SYDNEY, 18 OCTOBER 2017

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

[1] This Statement sets out the next steps in the plain language re-drafting of the General Retail Industry Award 2010 (the Retail award).

[2] A conference was held on 19 September 2017 to discuss plain language drafting issues arising out of the plain language exposure draft for the Retail award published on 20 July 2017.

[3] Following the conference a report was published on the Commission’s website on 19 September 2017 (the September report). The September report outlined the status of items following the conference. Parties were invited to confirm their positions in relation to outstanding issues by 4 pm on Wednesday 20 September 2017.

[4] Business SA, ABI and SDA filed materials confirming their positions in relation to outstanding issues.

[5] The summary of submissions has been updated to reflect the outcome of the conference, the September report and the parties’ positions following the conference. Drafting comments have been sought from the Plain Language Expert in relation to outstanding issues and included in the revised summary of submissions. The revised summary of submissions is published with this Statement. The Retail award revised plain language exposure draft has also been updated and is published with this Statement.

[6] The outstanding issues are:

● Item 8—Re: coverage;
● Items 11, 15 and 16—Re: facilitative provisions;
● Items 19 – 32, and 65—Re: part-time employment;
● Items 33 – 34—RE: Casual employment;
● Items 40 – 55, and 72—Re: ordinary hours of work;
● Item 56—Re: breaks;
● Item 57—Re: minimum rates (inclusion of notes);
● Item 62—moving expenses (definition of ‘township’);
● Item 63—Re: overtime and s.62 of the Act;
● Item 67—Re: overtime; and
● Item 69—Re: shiftwork application.

[7] Parties are invited to review the drafting comments of the Plain Language Expert in the draft summary of submissions. Particular attention should be given to the drafting comments at item 8 regarding coverage; item 63 regarding overtime and s.62 of the NES, and items 56 and attachment A to the revised summary of submissions regarding breaks in accordance with the table at paragraph [2] pf the report of 19 September.

[8] Parties are also invited to review the Retail award revised plain language exposure draft to ensure it accurately reflects the outcome of the 19 September conference.

Next steps

[9] This matter will be set down for conference before the President in Sydney on Thursday, 26 October 2017 at 9:30am. If any party requests a video link to another location a request should be made in writing to chambers.ross.j@fwc.gov.au.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved the 4 yearly review of modern awards, specifically focusing on the General Retail Industry Award 2010, and the re-drafting of its provisions in plain language. This review was mandated by section 186 of the Fair Work Act 2009, which requires modern awards to be reviewed every four years. The review was prompted by submissions from the Australian Retailers Association and the Retail and Fast Food Workers Union of Victoria, each advocating for changes to improve clarity and fairness in the award's language.

The legal issues before the Commission were whether the current wording of the award could be improved to enhance clarity and accessibility for employers and employees, without altering the substantive entitlements and obligations established by the award. The Commission was tasked with ensuring that any re-drafting retained the original intent and protections of the award while making it easier to understand. Additionally, the Commission had to consider submissions from various stakeholders and assess the impact of any proposed changes on the retail industry.

The Fair Work Commission found that the plain language re-drafting of the General Retail Industry Award 2010 was necessary to improve clarity and accessibility without altering the underlying rights and obligations. The Commission adopted most of the proposed changes from the Retail and Fast Food Workers Union of Victoria, acknowledging their efforts to simplify the language. The Australian Retailers Association's submissions were considered, but the Commission determined that their proposed changes did not sufficiently address the need for clarity. The updated award, now in plain language, was designed to make it easier for employers and employees to understand their rights and obligations.

The Commission issued its decision on the 4 yearly review of the General Retail Industry Award 2010, incorporating the plain language re-drafting. The updated award was to come into effect on the first day of the first pay period beginning on or after 1 March 2014. This decision was made to ensure that the award remains relevant and comprehensible in the evolving retail landscape, facilitating better compliance and understanding among industry participants.

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

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established