DECISION

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

Application by Australian Payroll Association
(AM2021/66)

COMMISSIONER BISSETT

MELBOURNE, 22 NOVEMBER 2021

Application to vary a modern award to remove ambiguity or uncertainty or to correct error – General Retail Industry Award 2020 – clause 11– minimum engagement for casual employees – determination issued.

[1] On 4 November 2021 I issued a decision 1 that the General Retail Industry Award 2020 should be varied. I expressed a provisional view that the variation should be to delete the existing clause 11.2 and replace it with the following:

11.2 The minimum daily engagement of a casual employee is 3 hours, or 1.5 hours’ in the circumstances set out in clause 11.3.

[2] I invited any party wishing to make submissions on my provisional view to do so by Wednesday 17 November 2021 and that if no objections were received, I would issue a determination varying the 2020 Award as indicated.

[3] No objections were received to my provisions view. Therefore a determination 2 will be issued varying the 2020 Award as proposed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 [2021] FWC 6228.

2 PR735945.

CaseChat Overview and Summary

The applicant, the Australian Payroll Association, sought to have a modern award varied to remove ambiguity or correct error. The dispute arose in relation to the General Retail Industry Award 2020, specifically clause 11, which addresses the minimum engagement for casual employees. The application was heard by the Fair Work Commission, the relevant tribunal with jurisdiction to interpret and vary modern awards.

The primary legal issue before the Commission was whether clause 11 of the General Retail Industry Award 2020 contained ambiguity or error that warranted variation. The Association argued that the clause was ambiguous in its application to casual employees and that the current wording led to uncertainty in compliance and interpretation. The Commission needed to determine whether the clause was clear and precise or if it contained language that could be reasonably interpreted in multiple ways, thereby necessitating clarification.

In its determination, the Fair Work Commission found that clause 11 was indeed ambiguous and that its current wording led to uncertainty in application. The Commission concluded that the ambiguity could potentially result in different interpretations and applications by employers and employees, which was not the intended outcome. The Commission varied the award to clarify the minimum engagement requirements for casual employees, thereby removing the ambiguity and ensuring a consistent and clear understanding of the award's provisions.

The Fair Work Commission issued a determination varying clause 11 of the General Retail Industry Award 2020 to remove the identified ambiguity and correct the error. The new wording aimed to provide clear guidance on the minimum engagement for casual employees, thereby ensuring that all parties understood their obligations and entitlements under the award. The Commission's decision was aimed at promoting fairness and certainty in the application of the award within the retail industry.

Application by Australian Payroll Association

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established