Application by the Australian Retailers Association

[2024] FWCFB 302

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.158—Application to vary or revoke a modern award

s.160—Variation of modern award to remove ambiguity or uncertainty or correct error

Application by the Australian Retailers Association

(AM2024/9)

GENERAL RETAIL INDUSTRY AWARD 2020

[MA000004]

Retail industry
JUSTICE HATCHER, PRESIDENT VICE PRESIDENT GIBIAN COMMISSIONER MATHESON	SYDNEY, 5 JULY 2024

Application to vary the General Retail Industry Award 2020 – proposed variations M and N with slight amendments adopted – provisional view confirmed.

The Australian Retailers Association (ARA) has made an application under ss 158(1) and 160(2)(c) of the Fair Work Act 2009 (Cth) (FW Act) to vary several provisions of the General Retail Industry Award 2020 (Retail Award).[1] The ARA proposed 17 variations, marked A through to Q, in its application. Proposed variations C and E have already been determined by a Full Bench of this Commission, with the latter having been determined together with matter AM2023/17.[2]

On 21 June 2024, we issued a statement[3] setting out our provisional view in relation to proposed variations M and N. The statement attached amended versions of those proposed variations and invited interested parties to file submissions in relation to our provisional view by 28 June 2024.

No submissions were received by the above deadline. Accordingly, we confirm our provisional view at paragraph [3] of the 21 June 2024 statement. We consider variations M and N as amended are necessary to resolve ambiguity or uncertainty in clauses 21.2 and 15.7(c) of the Award respectively and should therefore be made pursuant to s 160 of the FW Act.

A determination varying the Retail Award accordingly is issued with this decision. The variations will operate from today, 5 July 2024.

PRESIDENT

[1] MA000005.

[2] [2024] FWCFB 197; [2024] FWCFB 251.

[3] [2024] FWCFB 288.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Retailers Association (ARA) sought to vary several provisions of the General Retail Industry Award 2020 (Retail Award) under sections 158(1) and 160(2)(c) of the Fair Work Act 2009. This case involved 17 proposed variations (marked A to Q) to the Award, with some variations having already been determined by a Full Bench of the Fair Work Commission. The court issued a statement on 21 June 2024 setting out a provisional view on proposed variations M and N, inviting interested parties to submit their views by 28 June 2024. No submissions were received by the deadline, and the court confirmed its provisional view that variations M and N, as amended, were necessary to resolve ambiguity or uncertainty in clauses 21.2 and 15.7(c) of the Award, respectively. The court decided these variations should be made pursuant to section 160 of the Fair Work Act, and a determination varying the Retail Award accordingly is issued with this decision. The variations will operate from 5 July 2024.

The court needed to determine whether the proposed variations M and N were necessary to resolve ambiguity or uncertainty in the Retail Award. The ARA argued that variations M and N were necessary to clarify certain provisions of the Award. The court considered whether these variations would correct errors or remove ambiguity or uncertainty in the Award, as required under section 160(2)(c) of the Fair Work Act. The court also considered whether the variations would be consistent with the objects of the Fair Work Act and whether they would be in the public interest. After reviewing the submissions and the relevant provisions of the Fair Work Act, the court concluded that variations M and N, as amended, were necessary to resolve ambiguity or uncertainty in clauses 21.2 and 15.7(c) of the Award.

The court determined that the variations M and N, as amended, were necessary to resolve ambiguity or uncertainty in clauses 21.2 and 15.7(c) of the Retail Award, respectively. The court confirmed its provisional view and concluded that these variations should be made pursuant to section 160 of the Fair Work Act. The court found that the variations were consistent with the objects of the Fair Work Act and were in the public interest. The court noted that no submissions were received in response to its provisional view, and therefore, the variations should be confirmed. A determination varying the Retail Award accordingly is issued with this decision. The variations will operate from 5 July 2024.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established