Application by The Australian Retailers Association - [2024] FWCFB 197

[2024] FWCFB 197

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 158—Application to vary or revoke a modern award
s 160—Application to vary a modern award to remove ambiguity or uncertainty or correct error

Application by The Australian Retailers Association

(AM2024/9)

Variation on the Commission’s own motion

(AM2023/17)

GENERAL RETAIL INDUSTRY AWARD 2020

[MA000004]

Retail industry
JUSTICE HATCHER, PRESIDENT DEPUTY PRESIDENT CLANCY COMMISSIONER MATHESON	SYDNEY, 2 APRIL 2024

Proposed variation on the Commission’s own motion – separate application by The Australian Retailers Association – General Retail Industry Award 2020 clause 15.2(c) – ‘establishment’ v ‘retailer’.

Introduction and background

Clauses 15.1 and 15.2 of the General Retail Industry Award 2020[1] (Retail Award) currently provide:

15.1Ordinary hours may be worked by an employee on the day specified in column 1 during the span of ordinary hours specified in column 2 of Table 2—Span of hours.

Table 2—Span of hours

Column 1
Days Column 2
Span of hours

Monday to Friday, inclusive 7.00 am – 9.00 pm

Saturday 7.00 am – 6.00 pm

Sunday 9.00 am – 6.00 pm

15.2However, ordinary hours may be worked:

(a)from 5:00 am in a newsagency; or

(b)until midnight in a video shop; or

(c)until 11.00 pm if the trading hours of the establishment extend beyond 9.00 pm on a Monday to Friday or 6.00 pm on a Saturday or Sunday.

On 17 July 2023, the Commission commenced a matter (AM2023/17) on its own motion pursuant to s 160(2)(a) of the Fair Work Act 2009 (Cth) (FW Act), proposing to vary clause 15.2(c) of the Retail Award to replace the word ‘establishment’ with ‘retailer’. This was commenced following correspondence from The Australian Industry Group (Ai Group) stating that it considered the substitution of ‘establishment’ for ‘retailer’ as part of a variation which took effect on 1 October 2020[2] and which replaced the entirety of the terms of the Retail Award (2020 variation) inadvertently made the clause ambiguous or uncertain. The 2020 variation occurred as part of the Commission’s plain language redrafting process. Prior to this variation, the analogous clause provided:

(iii)in the case of retailers whose trading hours extend beyond 9.00 pm Monday to Friday or 6.00 pm on Saturday or Sunday, the finishing time for ordinary hours on all days of the week will be 11.00 pm.

On 6 February 2024, The Australian Retailers Association (ARA) filed an application (matter AM2024/9) pursuant to s 158(1) and/or s 160(2)(c) of the FW Act to vary several clauses of the Retail Award. Proposed variation E in the ARA’s application includes the replacement of ‘establishment’ with ‘retailer’ as in matter AM2023/17, but also adds ‘on all days of the week’ immediately after ‘11.00 pm’:

(c)until 11.00 pm on all days of the week if the trading hours of the ~~establishment~~ retailer extend beyond 9.00 pm on a Monday to Friday or 6.00 pm on a Saturday or Sunday.

On 29 February 2024, the presiding member held a directions hearing in respect of both matters AM2023/17 and AM2024/9.…

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 197
Case: [2024] FWCFB 197
Decision Date: 2 APRIL 2024

CaseChat Overview and Summary

The Australian Retailers Association (ARA) applied to the Fair Work Commission (FWC) to vary clause 15.2(c) of the General Retail Industry Award 2020 (Retail Award). The ARA sought to replace the word "establishment" with "retailer" in clause 15.2(c), which governs the permissible ordinary working hours in the retail industry. This application followed the FWC's own motion to vary the same clause, initiated by The Australian Industry Group (Ai Group). The dispute centred on whether the 2020 variation that replaced "retailer" with "establishment" inadvertently introduced ambiguity and uncertainty into the clause, which had previously been clear and well understood in the industry.

The legal issues before the FWC were whether clause 15.2(c) was ambiguous, uncertain, or erroneous under section 160 of the Fair Work Act 2009 (FW Act), and if so, what variation would best remedy these issues. The ARA argued that the replacement of "retailer" with "establishment" was erroneous and ambiguous, as it could refer either to a specific store or the entire business, leading to uncertainty. Conversely, the Retail and Fast Food Workers Union Incorporated (RFFWU Inc) opposed the variation, arguing that "establishment" was the proper term and that the clause was not ambiguous or uncertain. Additionally, the ARA sought retrospective effect for the variation, claiming exceptional circumstances existed due to the inadvertent error.

The FWC determined that the replacement of "retailer" with "establishment" did indeed create ambiguity and uncertainty, contrary to the intended plain language redrafting process. The ordinary meaning of "retailer" referred to the entire business, while "establishment" could refer to individual stores. The FWC found that the 2020 variation had unintentionally altered the clause's meaning, leading to confusion among employers. The FWC also accepted that exceptional circumstances existed to permit retrospective effect, as the error could result in significant compliance issues and monetary consequences if not corrected. The FWC concluded that the variation should revert to the previous wording, clarifying that ordinary hours could extend until 11:00 pm on all days if the retailer's trading hours exceeded specified limits.

The FWC varied clause 15.2(c) of the Retail Award to read: "(c)until 11:00 pm on all days of the week if the trading hours of the retailer extend beyond 9:00 pm on a Monday to Friday or 6:00 pm on a Saturday or Sunday." The variation would operate retrospectively from 1 October 2020, the date of the 2020 variation. This decision aimed to restore clarity and certainty to the clause, aligning it with the well-understood previous version.

Orders