Modern Awards Review 2012—General Retail Industry Award 2010

[2012] FWA 9722

FAIR WORK AUSTRALIA

STATEMENT

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 6, Sch. 5—Modern awards review

Modern Awards Review 2012—General Retail Industry Award 2010
(AM2012/8 and 10 others)

Retail industry
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT	SYDNEY, 14 NOVEMBER 2012

[1] Under Schedule 5, Item 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Provisions Act), Fair Work Australia (FWA) is required to conduct a review of all modern awards after 2 years. In the review, FWA must consider whether the modern awards achieve the modern awards objective and whether they are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.

[2] In relation to the review of the General Retail Industry Award 2010 1(the Award), 11 applications have been made seeking to vary different aspects of the Award. Parts of these applications, including the entirety of one application, have been referred to Full Benches of FWA considering issues relating to penalty rates, award flexibility and annual leave, public holidays, and apprentices, trainees and junior rates.

[3] On 14 November 2012 the applications relating to the Award were listed for Mention and Programming in relation to the parts of the applications which have not been referred to Full Benches. Representatives of several of the applicants (namely the Shop, Distributive and Allied Employees Association, the Australian Municipal, Administrative, Clerical and Services Union, the National Retail Association, the Australian Retailers Association, Master Grocers of Australia, and VANA Ltd), as well as representatives of other interested organisations (namely the Transport Workers’ Union of Australia, Australian Business Industrial and the Australian Federation of Employers & Industries), participated in the proceedings. In the course of the proceedings I sought the views of the parties regarding the appropriate timetable for the review and how it should be conducted.

[4] At the conclusion of the proceedings, I indicated that the review of the Award would proceed as follows:

The parties should confer regarding the issues that arise in the review and as a result of the applications.

Conferences should be conducted between now and the end of January 2013. The Australian Retailers Association (ARA), together with the Shop, Distributive and Allied Employees Association (SDA), will be primarily responsible for convening the conferences and advising other interested organisations and persons as to dates. Dates of conferences should be notified to my associate so that they can be posted on the FWA website.

The ARA and SDA should provide brief reports following these conferences to FWA.

The review will be listed for further Mention and Programming in Melbourne on Thursday 7 February 2013. On that day I will hear reports from the parties on the progress made in conferences. I will also set dates for the filing of submissions regarding the review, and for hearings.

SENIOR DEPUTY PRESIDENT

1 MA000004.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Australia (FWA) conducted a review of the General Retail Industry Award 2010 in accordance with the requirements of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. This review was necessitated by the need to determine whether the award achieved its intended objective and operated effectively, without anomalies or technical issues arising from the award modernisation process. The review was prompted by 11 applications seeking variations to different aspects of the award. The Senior Deputy President of FWA, Justice Boulton, presided over the proceedings. Various stakeholders, including representatives from unions, employers' associations, and industry groups, participated in the review.

The legal issues before the court encompassed the effectiveness and appropriateness of the award provisions as they related to penalty rates, award flexibility, annual leave, public holidays, and apprentice, trainee, and junior rates. Some of these issues had already been referred to Full Benches of FWA for separate consideration. The primary focus of the review was on the remaining applications and issues that had not been referred to Full Benches.

Justice Boulton directed that the review of the award would proceed through a series of conferences between the parties involved, scheduled to take place by the end of January 2013. The Australian Retailers Association (ARA) and the Shop, Distributive and Allied Employees Association (SDA) were tasked with convening these conferences and coordinating with other interested organisations. Reports from these conferences were to be submitted to FWA, with the review subsequently being listed for further Mention and Programming on 7 February 2013. On that date, Justice Boulton intended to hear updates from the parties on the progress made in the conferences, set dates for the filing of submissions regarding the review, and schedule the hearings.

The court did not make final orders at this stage but directed the process for the review to proceed as outlined above.

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Legal Principle Established