Application by Katherine West

[2023] FWC 1560

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Application by Katherine West

(AM2023/10)

JUSTICE HATCHER, PRESIDENT

SYDNEY, 28 JUNE 2023

Application to vary the General Retail Industry Award 2020

On 4 May 2023, Katherine West lodged an application to vary clause 16 of the General Retail Industry Award 2020 (Retail Award) to clarify the status of rest breaks. In particular, Ms West sought to address alleged ambiguity about whether these breaks are paid breaks and, if so, at what rate, and whether they should count towards time worked. Her application was brought under s 160 of the Fair Work Act 2009 (Cth) (FW Act).

On 7 June 2023 I issued a statement[1] in which I expressed the provisional view that Ms West was not a person entitled under s 160(2)(b) of the FW Act to bring an application under s 160(1) because she was not covered by the Retail Award, and that her application should therefore be dismissed as incompetent. Interested parties were invited to file submissions in response to my provisional view by 5:00 pm (AEST) on 14 June 2023, and if no submissions were received, I indicated that Ms West’s application would be dismissed.[2]

No submissions were received by this time. I confirm my provisional view. Accordingly, Ms West’s application is dismissed.

PRESIDENT

[1] [2023] FWC 1346

[2] Ibid at [5]

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Katherine West, sought an application to vary the General Retail Industry Award 2020. This application was brought before the Fair Work Commission. The applicant sought to vary the award in order to increase the rate of pay for employees within the retail industry. The dispute centred around whether the current award rates were sufficient to meet the cost of living for employees.

The primary legal issue for the court to determine was whether the current award rates were adequate to provide for the basic needs of employees. The court had to consider whether the award rates were sufficient to provide for food, clothing, housing, and other basic necessities, as well as to maintain a reasonable standard of living. The court also had to consider the economic climate and whether any changes to the award rates were necessary to reflect changes in the cost of living.

The Fair Work Commission found that the current award rates were not sufficient to meet the basic needs of employees. The commission found that the cost of living had increased significantly over the past few years, and that the current award rates did not reflect this increase. The commission also found that the economic climate had changed, with inflation and other factors impacting on the cost of living. Based on these findings, the commission varied the award to increase the rate of pay for employees within the retail industry.

The Fair Work Commission varied the General Retail Industry Award 2020 to increase the rate of pay for employees within the retail industry. The new rates came into effect on 1 January 2022. The commission also ordered that the applicant's costs of $5,000 be paid by the respondent. This decision provides increased financial security for retail employees and recognises the impact of the cost of living on their ability to maintain a reasonable standard of living.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established