FAIR WORK COMMISSION - Part 2 of Schedule 5, item 6—Review of all modern awards (other than modern enterprise awards and State reference public sector modern awards) after first 2 years

The Fair Work Commission reviewed applications to vary the General Retail Industry Award 2010. The review was mandated by Part 2 of Schedule 5, item 6, which required the Commission to assess all modern awards, excluding modern enterprise awards and State reference public sector modern awards, two years after their introduction. The review involved addressing various issues, particularly those related to the public holiday provisions within the award. The case involved multiple parties, including award employees and employers within the retail industry, who had filed applications to amend the award's provisions concerning public holidays.

The primary legal issues before the Commission were the appropriate forms of compensation for public holidays, the process for selecting these alternatives, and the mechanism for making such selections. The Commission had to decide how the alternatives to the standard public holiday provisions would be implemented, whether through agreement or otherwise. There was also the question of whether an election could be made for each public holiday independently and what the default compensation would be if no agreement was reached. These issues were significant as they affected the rights and obligations of both employers and employees in the retail industry.

The Full Bench of the Commission determined that the alternatives to the standard public holiday provisions should be selected through agreement. It was agreed that an election could be made in relation to each public holiday, providing flexibility for both parties. The default position was set to be penalty payments, ensuring a baseline level of compensation. The Commission resolved that other matters related to the award had already been determined in previous decisions, and these were not subject to further review in this instance. Consequently, the General Retail Industry Award 2010 was varied to incorporate the new provisions regarding public holiday compensation. This decision was aimed at balancing the interests of both employers and employees within the retail sector.