Application by The Australian Retailers Association
[2024] FWCFB 288
•21 JUNE 2024
| [2024] FWCFB 288 |
| FAIR WORK COMMISSION |
| STATEMENT |
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 | SYDNEY, 21 JUNE 2024 |
Application to vary the General Retail Industry Award 2020 – proposed variations M and N –draft terms agreed to by parties – draft terms slightly amended by Commission staff – provisional view that variations as amended by staff should be made.
The Australian Retailers Association (ARA) has made an application pursuant to ss 158 and 160 of the Fair Work Act 2009 (Cth) to vary the General Retail Industry Award 2020[1] (Award). In its originating application, the ARA set out 17 proposed variations, marked A through Q. Proposed variation E, together with matter AM2023/17, was determined by a Full Bench of the Fair Work Commission (Commission) on 2 April 2024.[2] Proposed variation C was also dealt with by a Full Bench of the Commission on 7 May 2024.[3]
Prior to a conference held on 17 May 2024 (the conference), the ARA provided the Commission a summary document setting out draft terms to effect proposed variation M, which sought to clarify the application of overtime provisions for employees in clause 21.2 of the Award, and proposed variation N, which sought to resolve what the ARA considered to be rostering ambiguities in clause 15.7(c). The ARA also informed the Commission that the draft terms in its summary document were agreed to by the Shop, Distributive and Allied Employees Association. During the conference, no party objected to the draft terms of proposed variations M and N. All parties’ positions in this respect are without prejudice to their respective positions as to other contested variations sought in the ARA’s application.
Consistent with the course of action proposed to the parties during the conference, the draft terms were reviewed by the Commission’s staff and slightly amended. The variations as amended by the Commission’s staff are set out in the attachment to this statement. It is our provisional view that the variations in the attachment would resolve ambiguity or uncertainty in clauses 21.2 and 15.7(c) of the Award respectively and should be made pursuant to s 160 of the FW Act.
Any party opposing the variations in the attachment will have until 5:00 pm on Friday 28 June 2024 to provide the Commission with submissions outlining the basis for their opposition. In the absence of any such submissions, the variations in the appendix will be made and shall operate from Friday 5 July 2024.
PRESIDENT
Appearances:
S Wilding and L Morris, solicitors, for The Australian Retailers Association.
R Bhatt for The Australian Industry Group.
L Carroll for National Retail Association Limited.
P Petropoulos for Australian Business Industrial and Business NSW.
S Burnley and H May for the Shop, Distributive and Allied Employees Association.
J Cullinan and L Kakogiannis for Retail and Fast Food Workers Union Incorporated.
Conference details:
2024.
Sydney and Melbourne by video link using Microsoft Teams:
17 May.
ATTACHMENT
Variation M
Delete clauses 21.2(a), 21.2(b) and 21.2(c) and replace as follows:
21.2 Payment of overtime
(a) An employer must pay an employee overtime for hours worked in accordance with Table 10 – Application of overtime:
Table 10 – Application of overtime
Column 1
Type of employment
Column 2
When an employer must pay overtime
Full-time employee Overtime is payable for hours worked:
(i) in excess of the ordinary hours of work; or
(ii) outside the span of ordinary hours (excluding shiftwork), subject to clause 15.2; or
(iii) outside the roster conditions prescribed in clause 15—Ordinary hours of work and rostering arrangements.
Part-time employee
Overtime is payable for hours worked:
(i) in excess of their guaranteed hours as agreed in clause 10.5(a) or as varied under clause 10.6 or clause 10.11; or
(ii) outside the span of ordinary hours (excluding shiftwork), subject to clause 15.2.
Casual employee Overtime is payable for hours worked:
(i) in excess of 38 ordinary hours per week or, if the casual employee works in accordance with a roster, in excess of 38 ordinary hours per week averaged over the course of the roster cycle; or
(ii) outside the span of ordinary hours (excluding shiftwork), subject to clause 15.2; or
(iii) in excess of 11 hours on one day of the week and in excess of 9 hours on any other day of the week.
(b) Overtime is calculated on a daily basis.
(c) Overtime rate
An employer must pay an employee for overtime in accordance with clause 21.2(a) at the following rates:
Table 11 – Application of overtime
Column 1
For overtime worked on
Column 2
Overtime rate
Full-time and part-time employees
% of minimum hourly rate of pay
Column 3
Overtime rate
Casual employees
% of minimum hourly rate of pay
(inclusive of casual loading)
Monday to Saturday— first 3 hours
150%
175%
Monday to Saturday— after 3 hours
200%
225%
Sunday
200%
225%
Public Holiday
250%
275%
NOTE 1: Schedule B—Summary of Hourly Rates of Pay sets out the hourly overtime rate for all employee classification according to when overtime is worked.
NOTE 2: The overtime rates for casual employees have been calculated by adding the casual loading prescribed by clause 11.1 to the overtime rates for full-time and part-time employees prescribed by clause 21.2(c).
Renumbering of Table references and references to clauses 21.2(a) – (e) throughout the General Retail Industry Award 2020 as appropriate.
Variation N
Amend clause 15.7(c) to read:
(c)The employer may roster an employee to work ordinary hours on 6 days in one week per two week cycle, provided that in the other week in that cycle the employee is rostered to work ordinary hours on no more than 4 days.
[1] MA000004.
[2] [2024] FWCFB 197.
[3] [2024] FWCFB 251.
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