Australian Retailers Association, The - [2024] FWC 2163

[2024] FWC 2163

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

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

Australian Retailers Association, The

(AM2024/9)

Variation on the Commission’s own initiative—General Retail Industry Award 2020

(AM2024/33)

Retail industry
JUSTICE HATCHER, PRESIDENT	SYDNEY, 15 AUGUST 2024

Application by The Australian Retailers Association to vary the General Retail Industry Award 2020 – proposed variations yet to be determined – commencement of new matter on the Commission’s own initiative as foreshadowed in final report on the Modern Awards Review 2023–24.

This statement concerns two matters. The first, matter AM2024/9, is an application made by the Australian Retailers Association (ARA) on 6 February 2024 to vary the General Retail Industry Award 2020 (Retail Award) in various respects (by way of variations designated A–Q) pursuant to ss 157 and/or 160 of the Fair Work Act 2009 (Cth) (FW Act). Some of the variations sought have already been determined by the Commission. Variation E was dealt with on an expedited basis and determined on the papers, and a decision[1] varying the Retail Award was published on 2 April 2024. Variation C was dealt with at an expedited hearing conducted on 1 May 2024, and a decision[2] varying the Retail Award was issued on 7 May 2024. As a result of a conferences conducted by the Commission on 26 April and 17 May 2024, agreement was reached by participating parties as to variations M and N, and the Retail Award was consequently varied[3] on 5 July 2024. The remaining proposed variations are yet to be determined by the Commission.

Matter AM2024/33 is a matter commenced on the Commission’s own initiative pursuant to ss 157(3)(a) and 160(2)(a) of the FW Act and arises from the final report[4] on the Modern Awards Review 2023–24 (Review) conducted by a Full Bench of the Commission, which was published on 18 July 2024 (Report). In the Review, the Commission among other things invited proposals to ‘make awards easier to use’. Submissions were received in response to these proposals, and consultations with interested parties concerning the proposals were conducted. In the Report, the Full Bench noted (at [136]) that there was a thematic overlap between the ARA application and a number of proposals advanced in the Review relating to the Retail Award, and went on to observe (at [146]):

… the Retail Award attracted the most proposals for change, and also proposals from the largest number of different parties. This perhaps reflects the fact that the Retail Award covers a higher proportion (11 per cent) of award-reliant workers than any other award. It certainly indicates a degree of concern amongst employers about the useability of this award which is significantly higher than for the other awards the subject of the Review

The relevant finding in the Report (at [161]) was as follows:

… it is clear that there remain significant concerns about the…

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.

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Details

AGLC: Australian Retailers Association, The [2024] FWC 2163
Case: [2024] FWC 2163
Decision Date: 15 AUGUST 2024

CaseChat Overview and Summary

The Australian Retailers Association (ARA) lodged an application with the Fair Work Commission (FWC) seeking to vary the General Retail Industry Award 2020 (Retail Award) in various respects. The application was made under sections 157 and 160 of the Fair Work Act 2009 (FW Act). The ARA's application, AM2024/9, sought a range of variations to the Retail Award, some of which have already been determined by the Commission. This statement pertains to the remaining variations yet to be determined. Additionally, the Commission commenced a matter on its own initiative, AM2024/33, pursuant to sections 157(3)(a) and 160(2)(a) of the FW Act, arising from the final report of the Modern Awards Review 2023–24. This report identified significant concerns about the proper interpretation and application of certain provisions in the Retail Award, particularly regarding its usability. The Full Bench, consisting of Vice President Gibian, Deputy President Clancy, and Commissioner Matheson, was constituted to hear and determine the outstanding variations in the ARA application, alongside the proposals from the Modern Awards Review.

The legal issues before the Commission involved determining whether the proposed variations to the Retail Award were appropriate to ensure the award's usability and clarity. This included assessing whether certain provisions were ambiguous, whether they could be simplified without undermining employee protections, and whether there were errors that needed correction. The Commission had to balance the need for clear, practical, and enforceable award provisions with the interests of employers and employees. The issues also encompassed whether the proposals from the Modern Awards Review should be incorporated into the Retail Award to address the identified concerns about its usability.

The Commission reasoned that there were significant concerns about the practical usability of the Retail Award, as evidenced by the numerous proposals for change from various stakeholders. The Full Bench concluded that the proposed variations and the relevant proposals from the Modern Awards Review raised serious issues that warranted consideration and determination. The Commission found that some provisions were indeed ambiguous or prone to misinterpretation, and that simplifying certain clauses would enhance the award's usability without compromising employee protections. The Full Bench decided to list the outstanding variations in the ARA application and the relevant proposals from the Modern Awards Review for directions and further hearing, to be conducted together. This approach would allow for comprehensive consideration of all issues and ensure a coherent and practical outcome for the Retail Award.

In conclusion, the Commission determined that the remaining variations in the ARA application and the relevant proposals from the Modern Awards Review should be listed for further hearing to address the identified usability issues in the Retail Award. The Full Bench's decision ensures that the award will be thoroughly examined to enhance its clarity and practicality, benefiting both employers and employees in the retail industry.

Orders