Application by The Australian Retailers Association - [2024] FWCFB 288

[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
COMMISSIONER MATHESON

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by The Australian Retailers Association

Details

AGLC: Application by The Australian Retailers Association [2024] FWCFB 288
Case: [2024] FWCFB 288
Decision Date: 21 JUNE 2024

CaseChat Overview and Summary

The Australian Retailers Association (ARA) applied to the Fair Work Commission to amend the General Retail Industry Award 2020, seeking to clarify the application of overtime provisions for employees in clause 21.2 and to resolve ambiguities in clause 15.7(c) concerning rostering. The Fair Work Commission considered the proposed variations M and N, which had been agreed upon by the parties involved. The Commission reviewed and slightly amended the draft terms, with a provisional view that these amendments would resolve the identified ambiguities and should be implemented.

The legal issues before the Commission involved determining whether the proposed variations to the award were necessary to eliminate ambiguity or uncertainty or correct errors, as permitted under section 160 of the Fair Work Act 2009. The Commission examined the proposed changes to ensure they aligned with the objectives of the Fair Work Act and adhered to the principles of fairness and clarity in industrial awards.

The Fair Work Commission concluded that the proposed variations, as slightly amended by its staff, would successfully resolve the identified ambiguities in clauses 21.2 and 15.7(c) of the award. The Commission decided that, in the absence of any objections, these variations would be implemented and would take effect from 5 July 2024. Any party opposing these variations was required to submit their reasons for opposition by 5:00 pm on 28 June 2024.

Orders