Application by The Australian Retailers Association

[2024] FWC 926

[2024] FWC 926

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

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

Application by The Australian Retailers Association

(AM2024/9)

GENERAL RETAIL INDUSTRY AWARD 2020

[MA000004]

Retail industry
JUSTICE HATCHER, PRESIDENT	MELBOURNE, 10 APRIL 2024

Application to vary several clauses of the General Retail Industry Award 2020 – conference convened – next steps.

1. The Australian Retailers Association (ARA) has applied under s 158 of the Fair Work Act 2009 (Cth) to vary the General Retail Industry Award 2020[1] (Retail Award). In its originating application, the ARA has set out 17 proposed variations, marked A through Q. Proposed variation E has already been determined by a Full Bench of the Commission together with matter AM2023/17.[2]

1. On 5 April 2024, I convened a conference of interested parties to gauge the extent to which the ARA’s remaining proposed variations (A-D and F-Q) might become the subject of a consensus. It was apparent that certain variations affected existing substantive entitlements and would not be agreed by the Shop, Distributive and Allied Employees’ Association (SDA) and other employee representatives in attendance. Accordingly, I facilitated discussion in respect of the balance of the proposed variations in respect of which there was some prospect of agreement being reached. This statement sets out the next steps in relation to those proposed variations.

Proposed variation A

1. Proposed variation A seeks to clarify that the requirement in various clauses of the Retail Award to record an agreement in writing may be satisfied by keeping a digital record (e.g. an exchange of text messages). The parties present agreed in principle that this is a pragmatic proposal but disagreed about the precise terms. The Commission will produce a draft clause, for discussion purposes only, for the parties to consider.

Proposed variation C

1. Proposed variation C seeks to reduce the minimum break between shifts from 12 hours to 10 hours as of right,[3] and further to clarify the penalty rate that is payable under clause 16.6(b) if an employee is required to resume work before the end of the minimum break period. The parties present will continue to discuss the former issue and were in dispute as to the latter issue. The ARA’s interpretation of the current clause 16.6(b) is that it requires the employer to pay 200% of the employee’s minimum hourly rate as set out in clause 17. However, the position of the SDA and other employee representatives is that the rate of 200% would apply to any loading or penalty which would otherwise be payable for the hours in question. There is also a question of how the clause should operate where the hours in question are performed on a public holiday, since the 200% rate is less that the public holiday rate.

1. I consider it appropriate to determine whether to vary clause 16.6(b) to clarify the applicable penalty rate on an expedited basis. Parties were directed at the conference to advise my chambers by 5:00 pm (AEST) on Monday, 8 April 2024 whether this issue may be determined ‘on the papers’ or requires a hearing. The SDA, the Australian Workers’ Union and Retail and Fast Food Workers Union Incorporated have requested a hearing. Accordingly, I make the following directions:

1. The ARA and parties supporting proposed variation C as set out in the originating application are to file an outline of submissions and any evidence on which they wish to rely by 4:00 pm (AEST) on Wednesday, 17 April 2024.

2. Parties opposing proposed variation C as set out in the originating application are to file an outline of submissions and any evidence on which they wish to rely by 4:00 pm (AEST) on Wednesday, 24 April 2024.

3. The matter be listed before a Full Bench at 10:00 am (AEST) on Wednesday, 1 May 2024.

Proposed variations H and I

1. Proposed variations H and I are aimed at providing greater flexibility for employers when rostering employees. Proposed variation H would enable employees to agree to waive the requirement in clause 15.7 of the Retail Award for their days off to be consecutive without first requesting it in writing (as is currently required). Proposed variation I would, in respect of employees who regularly work on Sundays, remove the requirement in clause 15.8 for their three consecutive days off in a four-week cycle to include Saturday and Sunday and, as with proposed variation H, would enable such an employee to agree to different arrangements without first requesting it in writing (as is likewise currently required). Both variations would, in terms, confine the application of clauses 15.7 and 15.8 to full-time employees on the basis that the clauses are currently to be read as confined to such employees. This contention is disputed by the SDA and other employee representatives.

1. In respect of clauses 15.7(d)(ii) and (iii), and 15.8(b) and (c), which are the parts of those clauses that require an employee to request different arrangements in writing and for the arrangement to be recorded in the employer’s time and wages record for that employee, the Commission will produce an alternative draft variation, for discussion purposes only, for the parties to consider. This may be considered without prejudice to the parties’ position as to whether clauses 15.7 and 15.8 should apply only to full-time employees, and whether the requirement in clause 15.8(a) for three consecutive days off must include Saturdays and Sundays.

Proposed variation M

1. Proposed variation M involves a redrafting of the current provisions identifying the circumstances in which full-time, part-time and casual employees are entitled to receive payment at overtime penalty rates in clause 21. The ARA submits this will make the clause easier for employers and employees to understand, and thereby promote compliance. The employee representatives are to consider whether the ARA’s proposed variation would involve any adverse effect on existing employee entitlements. This consideration will take the proposed variation as a stand-alone proposition, without prejudice as to their respective positions concerning any other issues such as the hours of work and rostering provisions. They are to advise my chambers by 5:00 pm (AEST) on Friday, 19 April 2024 whether they would agree to proposed variation M on this basis or, if not, identify any adverse effect which they say the variation would have upon existing entitlements.

Proposed variation N

1. Proposed variation N is said to resolve ambiguity about the restriction on the number of days on which an employee may be rostered to work in a given week set out in clause 15.7(c) of the Retail Award. The ARA has applied to vary that subclause as follows:

(c) The employer may roster an employee to work ordinary hours on 6 days in one week if the employee is rostered to work ordinary hours on no more than 4 days in the following week no more than 10 days per 2 week cycle.

1. The ARA submits that this would promote flexibility by expressly enabling employers to roster an employee to work four days in the first week of a given fortnight, followed by six days in the second, rather than the six-day week always having to be the first week of the relevant fortnight. It does not intend to erode the protection that the maximum number of days an employee may be rostered to work in any week is six, which is set out in clause 15.7(e). However, the SDA is concerned that the ARA’s proposed wording does not make the six-day maximum express. The SDA is to draft alternative wording for this variation that remedies its concern and file it with my chambers by 5:00 pm (AEST) on Friday, 19 April 2024.

Proposed variation O

1. Proposed variation O seeks to redraft the annual leave loading provision in clause 28.3. It has two aspects. The first is a variation to paragraphs (c) and (d) to clarify how the loading is to be calculated when the employee’s ordinary hours include hours upon which a penalty rate or loading is payable. The second is a proposed new paragraph (e) to clarify how the loading is to be calculated when an employee’s ordinary hours of work vary from week to week and may not be determinable for the period of annual leave. As to the first aspect only, the Commission will produce, for discussion purposes only, a draft variation for the parties to consider based on the equivalent provisions of the Fast Food Industry Award 2020.[4] The second aspect will be further considered separately in this proceeding.

Next steps

1. The Commission’s draft variations for discussion purposes only will be in a document attached to an email which will be sent directly to those parties which attended the conference on 5 April 2024.

1. This matter will be relisted for report-back as to the matters identified above, except proposed variation C, by video using Microsoft Teams at 10:00am (AEST) on Friday, 26 April 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.
S Burnley and K Biddlestone for the Shop, Distributive and Allied Employees Association.
G Taylor for The Australian Workers’ Union.
L Kakogiannis for Retail and Fast Food Workers Union Incorporated.

Conference details:

2024.

Melbourne:
5 April.

[1] MA000004.

[2] [2024] FWCFB 197.

[3] Clause 16.6(d) of the Retail Award currently permits the break between shifts to be 10 hours by agreement between the employer and an individual employee, or a group of employees.

[4] MA000003.

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