Modern Awards Review 2012 - General Retail Industry Award 2010 - Junior Rates
[2014] FWCFB 1846
•21 MARCH 2014
[2014] FWCFB 1846 |
FAIR WORK COMMISSION |
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years
(AM2012/196)
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT | SYDNEY, 21 MARCH 2014 |
Modern Awards Review 2012 - Junior rates - Application by the SDA to vary the General Retail Industry Award 2010 to provide for adult rates to be paid to 20 year old employees.
Introduction
[1] This decision concerns an application made by the Shop, Distributive and Allied Employees Association (SDA) to vary the General Retail Industry Award 2010 (the Award). 1 The application is made in the context of the review of all modern awards as required by Item 6, Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Provisions Act). The SDA seeks to vary clause 18 of the Award, the junior rates clause, to provide that “employees 20 years of age will receive 100% (adult rate)”. Put another way, the variation seeks to provide that 20 year old employees are to be paid the same minimum award rate for the classification in which they are engaged as 21 year old employees are paid. The Award currently provides that 20 year old employees are to receive 90% of the relevant adult rate.
[2] Pursuant to s.615A of the Fair Work Act 2009 (the Act) the President decided that it was in the public interest for this application to be dealt with by a Full Bench.
[3] In the hearings before us Mr S Moore, of counsel, appeared on behalf of the SDA, Ms J Dolan for the Australian Council of Trade Unions (ACTU), Mr M Tehan and Mr T Pick for the Commonwealth of Australia (Commonwealth), Mr N Tindley for the Australian Retailers Association (ARA), Mr S Elliffe and Ms D Allison for the National Retail Association (NRA), Mr D Sztrajt for Master Grocers Australia Limited (MGA), Mr B Ferguson for the Australian Industry Group (Ai Group), Ms S Haynes for Australian Business Industrial (ABI) and the Australian Chamber of Commerce and Industry (ACCI) and Mr J O’Dwyer for the Electrical Contractors Association (ECA). All of these parties tendered written submissions, and, in some cases which we later refer to, witness statements were also tendered. Written submissions were also filed by the Australian Federation of Employers and Industries (AFEI), the National Electrical and Communications Association (NECA) and the Master Plumbers and Mechanical Services Association of Australia (MPA).
Legislative provisions applicable to the review
[4] The review of the Award is being conducted under Item 6, Schedule 5 of the Transitional Provisions Act. Item 6 provides:
“6 Review of all modern awards (other than modern enterprise awards and State reference public sector modern awards) after first 2 years
(1) As soon as practicable after the second anniversary of the FW (safety net provisions) commencement day, FWA must conduct a review of all modern awards, other than modern enterprise awards and State reference public sector modern awards.
Note: The review required by this item is in addition to the annual wage reviews and 4 yearly reviews of modern awards that FWA is required to conduct under the FW Act.
(2) In the review, FWA must consider whether the modern awards:
(a) achieve the modern awards objective; and
(b) are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.
(2A) The review must be such that each modern award is reviewed in its own right. However, this does not prevent FWA from reviewing 2 or more modern awards at the same time.
(3) FWA may make a determination varying any of the modern awards in any way that FWA considers appropriate to remedy any issues identified in the review.
Note: Any variation of a modern award must comply with the requirements of the FW Act relating to the content of modern awards (see Subdivision A of Division 3 of Part 2-3 of the FW Act).
(4) The modern awards objective applies to FWA making a variation under this item, and the minimum wages objective also applies if the variation relates to modern award minimum wages.
(5) FWA may advise persons or bodies about the review in any way FWA considers appropriate.
(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of FWA) has effect as if subsection (2) of that section included a reference to FWA’s powers under subitem (5).”
[5] The approach to be adopted in a review under the Transitional Provisions Act was considered in the Modern Awards Review 2012 Full Bench decision in June 2012. 2 We adopt the approach there discussed. The following extracts from that decision are relevant to the application we are here dealing with:
“[82] The starting point in our consideration of this issue is to construe Item 6 according to the language of the provisions, having regard to their context and legislative purpose. The context includes the legislative history.
[83] As to the historical context the award modernisation process was conducted by the AIRC under Part 10A of the former WR Act. The process took place in the period from April 2008 to December 2009 and was conducted in accordance with a written request (the award modernisation request) made by the Minister for Employment and Workplace Relations to the President of the AIRC. The award modernisation process was completed in four stages, each stage focussing on different industries and occupations. All stakeholders and interested parties were invited to make submissions on what should be included in modern awards for a particular industry or occupation. Separate processes, including variously, the provision of submissions, hearings and release of draft awards, were undertaken in respect of the creation of each modern award to ensure parties were able to make submissions and raise matters of concern relevant to particular awards. By the end of 2009 the AIRC had reviewed more than 1500 state and federal awards and created 122 industry and occupation based modern awards.
[84] The award modernisation request and variations were issued in accordance with s.576C of Part 10A of the WR Act. Part 10A was repealed on 1 July 2009 (Item 2 of Schedule 1 to the Transitional Provisions Act). Despite that repeal, Part 10A was preserved by Item 2 of Schedule 5 to the Transitional Provisions Act in order to allow the award modernisation process to be completed. The award modernisation process required by Part 10A of the WR Act has been completed.
[85] Two points about the historical context are particularly relevant. The first is that awards made as a result of the award modernisation process are now deemed to be modern awards for the purposes of the FW Act (see Item 4 of Schedule 5 of the Transitional Provisions Act). Implicit in this is a legislative acceptance that the terms of the existing modern awards are consistent with the modern awards objective. The second point to observe is that the considerations specified in the legislative test applied by the Tribunal in the Part 10A process is, in a number of important respects, identical or similar to the modern awards objective which now appears in s.136...
[88] These policy considerations tell strongly against the proposition that the Review constitutes a “fresh assessment” unencumbered by previous Tribunal authority.
[89] In circumstances where a party seeks a variation to a modern award in the Review and the substance of the variation sought has already been dealt with by the Tribunal in the Part 10A process, the applicant will have to show that there are cogent reasons for departing from the previous Full Bench decision, such as a significant change in circumstances, which warrant a different outcome.
...
[99] To summarise, we reject the proposition that the Review involves a fresh assessment of modern awards unencumbered by previous Tribunal authority. It seems to us that the Review is intended to be narrower in scope than the 4 yearly reviews provided in s.156 of the FW Act. In the context of this Review the Tribunal is unlikely to revisit issues considered as part of the Part 10A award modernisation process unless there are cogent reasons for doing so, such as a significant change in circumstances which warrants a different outcome. Having said that we do not propose to adopt a “high threshold” for the making of variation determinations in the Review, as proposed by the Australian Government and others.
[100] The adoption of expressions such as a “high threshold” or “a heavy onus” do not assist to illuminate the Review process. In the Review we must review each modern award in its own right and give consideration to the matters set out in subitem 6(2). In considering those matters we will deal with the submissions and evidence on their merits, subject to the constraints identified in paragraph [99] above.”
[6] The modern awards objective is set out in s.134 of the Act 3 as follows:
“134 The modern awards objective
What is the modern awards objective?
(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce participation; and
(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and
(e) the principle of equal remuneration for work of equal or comparable value; and
(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and
(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.
This is the modern awards objective.
When does the modern awards objective apply?
(2) The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are:
(a) the FWC’s functions or powers under this Part; and
(b) the FWC’s functions or powers under Part 2 6, so far as they relate to modern award minimum wages.
Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).”
[7] The minimum wages objective is set out in s.284(1) of the Act as follows:
“284 The minimum wages objective
What is the minimum wages objective?
(1) The FWC must establish and maintain a safety net of fair minimum wages, taking into account:
(a) the performance and competitiveness of the national economy, including productivity, business competitiveness and viability, inflation and employment growth; and
(b) promoting social inclusion through increased workforce participation; and
(c) relative living standards and the needs of the low paid; and
(d) the principle of equal remuneration for work of equal or comparable value; and
(e) providing a comprehensive range of fair minimum wages to junior employees, employees to whom training arrangements apply and employees with a disability.
This is the minimum wages objective.”
Summary of the parties’ contentions
[8] The SDA submitted that it was appropriate we consider its application, as part of this review of the Award, to vary the wage rate for a 20 year old employee. It submitted the rates for employees of that age had not been given any particular consideration such that it could be asserted that the substance of the application had been dealt with when the Award was made under Part 10A of the Workplace Relations Act 1996 (the WR Act). Further, it submitted that even if we were to find that the substance of its current application was considered in the making of the Award, there are cogent reasons to now, in this review, consider whether a 20 year old should be paid the adult rate. It submitted the Award is not achieving the modern awards objective. A variation to the Award in the terms sought was said to be necessary to remedy this. Further, as the variation sought relates to the Award’s minimum wages, it was also submitted that the variation sought would be consistent with the minimum wages objective. The Commonwealth and the ACTU supported the SDA’s application.
[9] The employer associations (which we will refer to as “the employers”) made submissions to the contrary. They submitted that when the Award was made, the Australian Industrial Relations Commission (AIRC) considered the rates to be paid to junior employees and, clearly, employees aged 20 were within that group. They submitted there are no cogent reasons to warrant our reconsidering the rate that should be paid to a 20 year old employee. In the event we were persuaded to adopt the SDA’s submission that the substance of those rates had not been considered in the course of making the Award, then there is no basis to find that the Award is not achieving the modern awards objective. They also submitted the Award is operating effectively without anomalies or technical problems arising from the Part 10A process. No need was made out for any variation to remedy any issues in accordance with subitem (3) of Item 6 of Schedule 5.
(a) The Part 10A award modernisation process
[10] The first matter we will deal with is the Part 10A process during which the Award was made.
[11] The Award was made in the award modernisation process which was undertaken by the AIRC pursuant to a written request from the Minister for Employment and Workplace Relations (award modernisation request) under Part 10A of the WR Act.
[12] The WR Act made clear that modern awards could deal with the rates of pay for junior employees. Section 576J of the WR Act provided that a modern award could deal with terms about a number of matters which were listed in that section. One was “minimum wages (including wage rates for junior employees, employees with a disability and employees to whom training arrangements apply)”. 4 Section 576J(3) provided that “junior employee means an employee who is under the age of 21”. We note that the current definition of junior employee, contained in s.12 of the Act, is that such a person is “a national system employee who is under 21”.
[13] In its decision of 20 June 2008 the AIRC Full Bench identified a list of priority industries and occupations that would be first dealt with and the retail industry was in this list. 5 Interested parties filed submissions regarding the terms of an award for the retail industry in July and August 2008. The SDA’s submissions made the following points: 6
● In its draft award and submissions it used the term “age based discounted rates of pay” for the title of the clause that identified the percentage of the relevant adult rate which employees, aged between 16 and 20, were to be paid.
● Neither the WR Act nor the award modernisation request made it mandatory to include discounted rates of pay for junior employees and consideration needed to be given to whether a modern award should include such rates. The AIRC was required to do more than merely replicate pre-existing rates. Nonetheless, the SDA had approached junior rates of pay in a pragmatic way, acknowledging that employers had built cost structures around the significant use of existing junior rates.
● The SDA had chosen to put rates for juniors in its draft award which reflected the percentages in Shop, Distributive and Allied Employees Association - Victorian Shops Interim Award 2000 7 (Victorian Shops Award). Employees at age 20 were to be paid 90% of the relevant adult rate. It submitted there was no justification for employees at 16 years of age being paid less than 50% of the relevant adult rate.
The SDA addressed the specific classifications to which the age based discounted rates would apply. It addressed employees under 21 performing higher grade work in hairdressing and beauty, community pharmacy and clerical administrative streams (which streams it had proposed should all be in the modern retail industry award) and that junior rates should have limited application to employees in those streams.
In the case of the retail stream it submitted that employees under 21 years of age should be paid discounted rates only if engaged under the classifications of Retail Worker Levels 1 and 2. It said that the skill and responsibility required of a Retail Worker Level 3 or a higher classification could not justify an age based discount. The reality was that an employee would not be engaged by an employer at this level unless that employee was as competent to perform at the same level as an adult worker. The rationale employers had used for age based discounted rates was that it provided an incentive for employers to employ juniors and reflected their lack of experience or proper work ethic, and consequently their work value to the employer. This rationale disappeared when a junior is promoted to a higher level classification or given higher duties.
[14] The SDA filed a draft award and clause 19 of that draft, titled “Age Based Discounted Rates”, was in these terms: 8
“19.1 Age Based Discounted Rates for Employees under 21 Years of Age apply to the following classifications only
- Retail Worker Level 1 and Level 2
- Salon Assistant
- Pharmacy Assistant Levels 1 and 2
- Clerical and Administrative Levels 1, 2 and 3
The following percentages of the appropriate classification will apply:
Age | % of adult rate |
16 years and under | 50 |
17 years | 55 |
18 years | 67.5 |
19 years | 80 |
20 years | 90 |
...”
[15] The ARA submitted 9 that the classification structures in the existing retail instruments were vastly different and there were few points of commonality. Accordingly, it submitted that the Commission should adopt the junior rates of pay in the Shop Employees (State) Award10 (NSW NAPSA) as they reflected the most common structure and an appropriate balance of the rates in pre-existing awards. Under the NSW NAPSA, a 20 year old employee was entitled to 90% of the adult rate of pay.
MGA filed submissions and a draft award. 11 The award contained a junior rates clause which had a rate of pay for a 20 year old at 90% of the adult rate for the applicable classification. We were not taken to any submission it had made about junior rates.
[16] The NRA and the Australian National Retailers Association (ANRA) filed joint submissions 12 which supported the maintenance of current junior rates as they appeared in pre-reform awards. They also submitted that State based differentials in junior percentages should be retained.
[17] There were consultations with interested parties in the industry before Vice President Watson in August 2008. During these consultations, the SDA responded to the ARA’s proposal and discussed the method that should be employed in determining which existing junior rates structure was the most common. In doing so, the SDA stated that in the majority of awards 20 year old employees were to be paid 90% or more of the adult rate of pay. 13
[18] The SDA said that it would be content if the Commission adopted the differentials in rates as they appeared in the NAPSAs as the NRA and ANRA had submitted. If that was to occur those State differentials would be removed from the award after five years and the SDA would be “quite happy to accept that proposition.” 14
[19] Some further submissions were made subsequent to the public consultations. The NRA and ANRA clarified their position about State based differentials. They supported the maintenance of those differentials in junior rates of pay for the first five years after which they sought the implementation of the structure in the NSW NAPSA. 15 The SDA filed submissions in response which highlighted that although the NRA and ANRA had adopted the provisions in enterprise agreements for some matters such as casual loadings or span of hours, they had not adopted the junior rates percentages in enterprise agreements.16 They submitted that the majority of enterprise agreements gave 20 year old employees the adult rate of pay.
[20] The AIRC issued a Statement 17 and an exposure draft of the Award18 in September 2008. The draft contained a rate of pay of 90% of the appropriate adult wage rate for all 20 year old employees. In the Statement the Full Bench said:
“[89] The terms and conditions in the draft award have been set having regard to the disparate terms and conditions currently in awards and NAPSAs. Those instruments contain a variety of different obligations and entitlements. Differences exist between the rates and conditions in different States, different parts of the industry and even between different groups of employers within the same part of the industry.”
[21] Submissions about the terms of the exposure draft were filed in October 2008. The SDA submitted that the exposure draft “allows every employee under the age of 21 to be paid a reduced rate. This could not possibly have been the intention.” The SDA restated its earlier position, that junior rates should not apply to employees who are engaged as a Retail Worker Level 3 or higher classification. It submitted that no job at Retail Worker Level 3 was introductory work or work requiring close and personal supervision or constant on-the-job training, which employers argue justified payment of lower rates to junior employees. 19 The NRA and ANRA submitted that the percentages adopted for junior employees in the exposure draft had “gone a step further than an appropriate swings and roundabouts approach” to the NSW NAPSA junior rates they had proposed.20
[22] The exposure draft was the subject of public consultation before the Full Bench in November 2008. The SDA commented on the rate of pay for employees under 16 years and said it was of the view that no employee should be paid less than 50% of the adult rate. It went on to submit that this was not the forum in which to address the issue of where junior rates should apply and the ages at which they should apply. It accepted that “in the scheme of things” it could accept the junior rates in the exposure draft. 21
[23] The ARA submitted that the SDA’s argument that junior rates should be limited to the two lower classifications under the award should “be ignored” as this was not a feature of the pre-reform awards. 22
[24] In December 2008 the Full Bench published its decision relating to the priority industries and also addressed a number of general issues and standard clauses that would be placed in modern awards (the December 2008 decision). 23 One general issue concerned junior and apprentices rates. In dealing with the context in which the award modernisation process was taking place, the Full Bench said:
“[10] The process leading to the making of the priority modern awards has involved pre-drafting consultation, the preparation and publication of exposure drafts, further consultation on the drafts and finally the preparation and publication of the awards. Every written submission and suggestion of any significance has been published on the AIRC website. That site also contains the transcript of the public consultations as well as exhibits and other relevant material. Because of the vast amount of material it has not been possible to refer to all of it. We have attempted, however, to refer to the significant areas of difference in the course of deciding various matters and to indicate the basis upon which we have formulated the terms of the awards. It is apparent that interested parties have adapted well to this process and that there has been adequate opportunity for comment on the exposure drafts and on the various proposals which have been made in relation to them.”
[25] In that part of its decision titled “General Issues and Standard Clauses” it addressed the topic of junior and apprentices rates. It said:
“Junior and apprentice rates
[71] The federal awards and NAPSAs with which we are dealing contain a very wide range of rates for junior employees and apprentices. The relevant instruments fix percentages of the adult wage for juniors and apprentices based on a host of historical and industrial considerations, most of which can only be guessed at. It is not possible to standardise these provisions on an economy-wide basis, at least not at this stage. We have adopted the limited objective of developing new rates which constitute a fair safety net for each of the modern awards based on the terms of the relevant predecessor awards and NAPSAs. We have attempted to strike a balance as between, in some cases, wildly varying provisions. In the case of junior employees the rates will be expressed as a percentage of the rate for the relevant adult classification. In the case of apprentices the rates will generally be expressed as a percentage of the relevant trade rate.”
[26] Later in its decision each of the priority industry and occupational awards was addressed. In the case of the retail industry the Full Bench decided to make separate awards for general retailing, fast food, hair and beauty and community pharmacies. It said:
“[286] The contents of the four awards we publish with this decision are derived from the existing awards and NAPSAs applying to the different sectors. Although the scope of the awards is obviously reduced, this did not eliminate the variations in terms and conditions within each part of the industry. We have generally followed the main federal industry awards where possible and had regard to all other applicable instruments. In this regard we note in particular the significant differences in awards and NAPSAs applying to the fast food and pharmacy parts of the industry.
[287] Many of the submissions made to us from employers expressed concern at additional costs arising from provisions of the Retail industry exposure draft regarding hours of work, overtime, penalty rates, annual leave and allowances. We have revised these provisions having regard to the terms, incidence and application of relevant instruments for each sector. The result is provisions which more closely approximate to existing instruments for the relevant parts of the industry but which adopt different standards from one part to another. We have addressed submissions concerning the application of allowances and hours provisions and made other changes consistent with the approach to such matters in the main part of this decision.”
[27] No specific reference was made by the Full Bench to the junior rates provisions in the award made for the retail industry.
Submissions regarding the Part 10A process
[28] The SDA submitted that the substance of the application before us was not considered by the Full Bench during the award modernisation process. Although the issue of junior rates for employees under the proposed retail industry award was agitated by the SDA, the issues were limited in scope to two matters: that employees under the age of 16 years be paid at least 50% of the adult rate of pay and that the applicability of junior rates be limited to employees engaged under the classifications of Retail Worker Level 1 and Level 2. Mr Moore submitted that the present controversy, that 20 year olds be paid the adult rate of pay, was not put to or considered by the Full Bench during the award modernisation process.
[29] The SDA pointed to its submissions of July 2008 which identified that the rate of pay sought by the SDA for 20 year old employees was 90% and to the submissions of the relevant employer parties which sought the same. The SDA described the comment made by the SDA about junior rates and State differentials in the August 2008 consultations as an aside, in the context of a question from Vice President Watson, and it did not amount to a claim that junior rates under the proposed retail award should be abolished.
[30] The SDA submitted that the comments about junior and apprentice rates made by the Full Bench in the December 2008 decision were about the general approach it had taken to those rates, 24 and that it had pursued the “limited objective” of setting junior rates based on pre-reform instruments rather than determining any controversies about the level of junior rates in each industry. It contrasted these general comments with those the Full Bench made about the catering, liquor and accommodation and restaurant industries where the Full Bench explicitly dealt with junior rates of pay.25 On this basis, the SDA submitted that the award modernisation process poses no impediment to our consideration of its application as part of this review.
[31] The SDA also made an alternative submission. It said that should we find that the matter of rates to be paid to junior employees of 20 years of age was considered as part of the award modernisation process, any such consideration was merely incidental to the matters before the AIRC. Further, the limited objective of standardising the relevant predecessor instruments, the broad scope of the exercise undertaken by the AIRC which prevented it from considering the merit of relevant provisions, and the failure of current junior rates to provide a fair and relevant minimum safety net for 20 year olds are all cogent reasons for revisiting the rates in this review.
[32] The ACTU and Commonwealth also submitted that the substance of this application was not canvassed during the award modernisation process. They argued that the AIRC sought merely to derive a safety net from pre-reform instruments that contained a wide range of junior rates of pay and that this did not involve a consideration of the merits of the matter. The Commonwealth submitted that this is a cogent reason why we should revisit junior rates in the Award. The ACTU submitted that the Full Bench in its December 2008 decision had implicitly recognised the need to revisit the issue in the future.
[33] The ARA submitted that the present application agitates matters that were dealt with during the award modernisation process and that the SDA has failed to establish any cogent reasons to revisit those matters. Specifically, the ARA identified submissions made by the SDA to the AIRC relating to the need to prevent and eliminate age discrimination, the promotion of equal remuneration for work of equal value and the rationale upon which rates for junior employees are discounted. The ARA submitted that these are the very arguments that have also been put to us.
[34] The ARA submitted that the union has mischaracterised the December 2008 decision which reflected the AIRC’s reluctance to develop standard rates of pay for apprentices and juniors that would apply in all industries. The Bench did, however, explicitly state that it had determined new rates which constituted a fair safety net and this indicates that the merits of the junior rates clause were considered. The ARA argued that although a submission made by a party may not have been referred to in the decision, we should assume that all of the material was considered. The SDA’s submission, that the AIRC’s “limited objective” of standardising rates provides a cogent reason, must fail.
[35] The ARA noted that subsequent to the making of the Award, the SDA applied to vary it under s.576H of the WR Act such that the junior rates clause would not apply to trades classifications. That application was dismissed on the basis that what was sought was not a feature of the underpinning instruments. 26 It submitted that in that matter, the SDA also sought to rely on the argument that aged based discounted rates are not appropriate for highly qualified junior employees.
[36] The MGA supported the submissions made by the ARA with respect to the award modernisation process and the SDA’s failure to establish cogent reasons.
[37] The NRA submitted that the issue of junior rates was considered during the award modernisation process and the SDA had sought 90% of the adult rate of pay for 20 year old junior employees. It was submitted that the AIRC had considered the need to create a fair minimum safety net and that the SDA had failed to establish any cogent reasons for revisiting that determination.
[38] Ai Group submitted that the SDA’s submissions to the AIRC ventilated similar concerns to those raised in these proceedings. When regard is had to those submissions, the award modernisation request which required the AIRC to consider protecting young people in the labour market and the December 2008 decision, it is clear that junior rates in the retail industry were squarely dealt with during the award modernisation process.
[39] Ai Group submitted that the AIRC expressly stated that it had developed a fair and relevant minimum safety net for junior employees and thus, the substance of the application made by the SDA in this review has been dealt with. No cogent reasons have been established by the SDA.
[40] ACCI and Business SA made similar submissions to Ai Group. They said the SDA had not established any significant change in circumstances which would warrant a variation to junior rates in the Award. The matter of appropriate junior rates had been determined by the Full Bench in the December 2008 decision. The fact that the Full Bench had found it had not been possible to standardise rates across the States and Territories did not of itself enliven the jurisdiction of the Commission in this review, or provide cogent reasons to here revisit junior rates.
Conclusions about the Part 10A award modernisation process
[41] We agree with the SDA’s submission that the issues raised in the award making process which concerned junior rates were confined and specific. They related to the percentage of the adult rate below which no employee should be paid and to the rates for employees who worked in higher classifications and those with trade skills.
[42] There was no specific consideration given to the percentage of the adult rate which should be paid to a 20 year old. From its first draft, the SDA had proposed that retail workers at the first two classification levels should be paid 90% of the relevant adult rate. In those circumstances, and given the employers also proposed that same percentage for these workers, there was no need for the Full Bench in the Statement accompanying the exposure draft (or at any later time) to comment about appropriate percentages for these workers. It was not in contest.
[43] By the time of the Full Bench public consultations it did not seem there was any controversy about the scale of rates for any juniors which was contained in the exposure draft. In that case it is not surprising the Full Bench said little about the rates and the percentages aligned with each of the junior ages in its December 2008 decision. This is consistent with the comment made by the Full Bench in paragraph [10] of the December 2008 decision. It was not considered a significant area of difference and, it follows, there was no controversy of substance which the Full Bench needed to address in respect of any of the awards it made in the retail industry.
[44] In reaching our conclusion we have closely considered all the materials referred to us about the various stages in the making of the Award. We are not persuaded that the considerations which are raised by the variation now sought by the SDA were in issue. In our opinion, a fair reading of all the relevant documents reveals that no need arose for consideration to be given to the appropriate rates for 20 year old employees. Nor is it correct to describe the comment made by the advocate for the SDA, during the August 2008 consultations, as an indication that the SDA was seriously advocating for the abolition of all junior rates. It was an observation that, if the employers were insisting on the retention of State differentials, then in 5 years time the practical effect of that may be that the junior rates clause would cease to operate.
[45] For all these reasons, we are not persuaded by the employers’ submissions that the substance of the claim before this Full Bench was considered during the Part 10A process. We do not therefore need to consider whether there are cogent reasons to revisit it in the sense in which that “test” is referred to in the Modern Awards Review 2012 decision. 27 It is necessary however for the SDA to establish a case on merit that the Award is not meeting the modern awards and minimum wages objectives. It seeks to do so by relying heavily on the written and oral evidence of the numerous witnesses it called. Before we turn to consider that evidence we should indicate that the SDA did not rely on the considerations in subitem 2(b) of Item 6 of Schedule 5 of the Transitional Provisions Act to support the variation sought. That provision is set out earlier in this decision. It requires the Commission in this review to consider if the Award is operating effectively without anomalies or technical problems arising from the Part 10A process.
(b) The evidence
[46] We turn now to consider the evidence presented by the SDA and the employers in the proceedings.
SDA witness evidence
[47] The SDA relied on the evidence of 20 witnesses all of whom were employed in the general retail industry. A witness statement of each was tendered. All except one of these witnesses gave oral evidence and was cross examined. We should here note that both the SDA and the employer witness evidence was primarily about employees classified at Retail Employee Level 1. We will now provide a summary of the evidence of those witnesses.
[48] Mr Sebastian Fernandez, 28 who is 22 years old, is a casual retail assistant at Kmart and engaged under an enterprise agreement. He had worked there since the age of 18. Upon commencement he was provided with the same training as all other employees when they first joined the store. There was no specific training given to him as a junior employee. The only training he received was in lay-by. From the age of 18 he regularly worked without supervision and from 19 years of age he often supervised other staff who were older and less experienced than him. From that time onwards he had performed a wide range of duties and this had remained unchanged when he turned 20 and then 21. Mr Fernandez accepted that he had matured since he commenced employment with Kmart and his performance had improved with age and experience.
[49] Ms Vania Chrisopolous, 29 aged 19, works as a courtesy desk associate at Big W. She was engaged to replace an adult employee who had gone on maternity leave and she performed the same duties as that employee had. She said the majority of employees in her area were adult employees and she did the same duties as them but was paid less. Ms Chrisopolous works 15 - 20 hours a week but would prefer to work 35 hours a week. She had not received any training in rostering or budgeting. The concept of shrinkage was understood by Ms Chrisopolous and she accepted that the risk of shrinkage is greater where employees are careless.
[50] Ms Dela Allen 30 is a 22 year old sales assistant and has been employed by Sanity for around three years. She was provided with basic training about customer service and store procedures when she started. In 2012 she was appointed as a manager and she then received some further training. She had recently stepped down from the managerial role and it had been filled by a 19 year old. Since stepping down from her managerial role, Ms Allen’s responsibilities have been the same as they were when she first commenced work. She said that she felt she was able to perform confidently in her role two months after commencing employment with Sanity but acknowledged that with experience an employee improves in their ability to manage customers. Ms Allen gave evidence that in her store, all employees are expected to know the work performed in any role and that there was little difference between the work she performed as a manager and that which she performs as a sales assistant. During her time as manager, she was not responsible for rostering staff or budgeting for the store.
[51] Mr Brendan Evans, 31 who is 26 years old, has been employed by Woolworths as a long life retail assistant since the age of 20. He is engaged under an enterprise agreement as a part-time employee and intends to commence study. Mr Evans was provided with one-off training when he commenced and regularly worked without direct supervision. He had received no further training. He said that the responsibilities he undertook were the same at the age of 20 as they were when he turned 21. Mr Evans had received training in shrinkage however he had not been trained in rostering or budgeting.
[52] Mr Emmanuel Giakoumakis, 32 who is 20 years old, is employed as a retail assistant by Dick Smith Electronics. He has been working in the industry from the age of 15. Mr Giakoumakis said that the work he performs is the same as that performed by employees who are older than him. He has worked without supervision since 17 years of age and has been responsible for training other staff including employees older than him. His evidence was that the employees that he trains are able to perform their roles to the same level as himself. At age 18 he assisted with recruitment processes. He was provided with a six hour induction program prior to commencing work and had received subsequent on-the-job training. He accepted he had matured since he was 15 years old, when he first entered the industry. He is paid award rates but also receives a 3% commission of the gross profit on every sale he makes. Mr Giakoumakis is paid higher duties for training staff and for opening or closing the store when his store manager is not present. He has not been trained in budgeting or rostering for the store as this role is performed by the store manager.
[53] Ms Nikita Griffin 33 has been employed at a Bi-Lo Supermarket since the age of 14. From the age of 18 she worked as a checkout operator and supervisor and her duties included customer service and supervising the checkouts. Ms Griffin is aged 22 and is now a customer service manager. In that role she is required to supervise register staff, close the store, ensure that all cash takings are accounted for and secure the cigarettes by unpacking the service kiosk. She said that she faced some resistance from senior employees she supervised. There are seven supervisors who report to her, of whom at least three are under the age of 21. Ms Griffin is responsible for rostering staff in her store and understood that for each roster, labour costs are required to be within a certain percentage of sales, however she bases her rostering primarily on the availability and skills of the staff. Ms Griffin said that instructions would be provided to managers as to how to drive efficiencies if labour costs increased. She was provided with some training in budgeting however could not provide evidence as to the highest cost incurred by the store.
[54] Ms Jessica Ryan 34 is 24 years old and has worked for Woolworths for four years. First she was a checkout operator and then was appointed as a part-time service supervisor. She is engaged under an enterprise agreement. As a supervisor Ms Ryan is responsible for control over cash, customer service, supervising staff, rostering breaks and handling customer complaints. There are employees aged 18 and 20 who perform in the same role and they supervise employees who are older than them. Of the 15 checkout operators she supervises in one shift, approximately seven are under 21 years of age. Ms Ryan accepts that greater maturity over time assisted her in securing her current role. Although she is not trained in rostering or budgeting, Ms Ryan understands that the store is often understaffed due to budget constraints. Ms Ryan had not received any training in loss prevention and shrinkage.
[55] Ms Kirsty Gould 35 is 22 years old and works as a full-time sales assistant under an enterprise agreement for Kmart and has been engaged by Kmart since she was 15. She was initially employed as a casual, working roughly 20 hours a week however she sought to work more hours. Ms Gould received training in using the cash register, lay-bys, OH&S, company policies and product knowledge however this training was offered to all employees, irrespective of their age. At the age of 19 she was offered a position in the “Manager in Training” program. Ms Gould said that since the age of 18 she has been confident in her position and since turning 20, there has been no change in her duties or responsibilities but her productivity has improved. She also accepted that she had matured since she was first employed and this had improved her customer service skills and the care she took when doing her job. Ms Gould has not been trained in rostering, budgeting or shrinkage.
[56] Mr Bradley Cartledge 36 is aged 25 years and has been working for Bunnings for the last nine years. Mr Cartledge was trained in his position when he first commenced employment. To his knowledge, such training was given to all new employees regardless of their age. He has subsequently been provided with training in driving a forklift. He has not been trained in budgeting or rostering however he had undertaken an online course concerning shrinkage from which he understood that an employee’s attentiveness affected the store’s ability to prevent loss. He was appointed to a supervisory role as a result of his strong performance. He has supervised other staff since the age of 18 and was fully competent in his role within six months after he commenced. Mr Cartledge saw no change in his responsibilities or work duties since the age of 20 however he accepts that with greater experience and maturity he is better able to perform his role. Mr Cartledge is employed on a part-time basis and his hours depend, in part, on his university timetable.
[57] Ms Hayley Haigh 37 is 19 years old and was employed by Beer Wine Spirits. She commenced working in retail four years ago for Woolworths. Her responsibilities are the same as those older than her and include customer service, restocking the fridges and shelves, dealing with difficult customers and shoplifters. Ms Haigh says she feels “disrespected” as she is not paid the same rate as adult employees who do the same work. She worked 20 hours a week whilst studying and stated that this was sufficient to support herself. Ms Haigh accepts that she has become more mature over time and that the experience gained in her current position has contributed to her future employability. Ms Haigh has not been provided with training in budgeting but had received some on-the-job training in the prevention of shoplifting.
[58] Mr Julian Richards, 38 aged 29, started working for Bunnings at the age of 18. This was his first paid job in the retail industry. He received some basic training which was not age specific. He has not been trained in budgeting or rostering but is aware that shrinkage is minimised by greater attentiveness. He is covered by an enterprise agreement. Mr Richards worked as a casual and his hours depended upon his university timetable and business requirements. When he was not studying he would work 38 hour weeks. From the age of 18 he has worked without direct supervision and from 20 was responsible for supervising other staff, often older than him. Within 3 - 6 months of commencing, Mr Richards felt fully competent in his role and nothing has changed regarding his responsibilities since the age of 20 although he accepts that with experience and maturity he is better able to perform his role.
[59] Ms Renee Antill 39 is 28 years old and has worked at Woolworths since the age of 16. Ms Antill received training when she first commenced employment but this was not age specific. Within six months she felt fully competent in her role. When she turned 18 she received further training as a systems operator and in cash control and payroll. From the age of 20, Ms Antill’s work involved cash register operation, customer service, supervising other checkout operators, pricing and ticketing integrity. Ms Antill stated in her evidence that the work she performed did not change when she turned 21 and she was given no indication that her performance had improved since the age of 20. During cross examination Ms Antill accepted that in her time at Woolworths her efficiency, confidence, maturity and ability to deal with customers had improved with experience. She is engaged under an enterprise agreement. Ms Antill has not received training in budgeting however she understands that her employer aims to minimise costs in determining its rosters and has been trained in paying attention to detail in order to minimise shrinkage.
[60] Ms Kerrie Pugh 40 is 28 years old and has been employed by Bunnings for 11 years. Prior to that, she worked for WA Salvage which is also in the retail industry. She had started working in retail when she was 16 years old. Ms Pugh is covered by an enterprise agreement. When she commenced employment with Bunnings, Ms Pugh was provided with two weeks of training which was not age specific. Any training that she has received since then has been provided to all employees. Ms Pugh has not been trained in budgeting or shrinkage. She has been trained in rostering and accepted that the store’s budget is a relevant consideration in determining the roster. At the age of 18 she worked as a front end controller which involved instructing and supervising other employees who worked at the registers. She was not paid a higher amount for this. Some of the employees she supervised were older than her. Nothing has changed in the nature of the work performed by her since the age of 20. She accepted that with experience and maturity she was better able to perform her role.
[61] Mr Benjamin Knight 41 is a 20 year old retail assistant employed by Typo. He has worked for three employers in the retail industry over the past six years. His role involves providing customer service, opening and closing the store, cleaning, inventory handling and administrative tasks. This work is the same as that performed by older employees. During the Christmas period, Mr Knight was informally asked to supervise junior staff but was not paid a higher duties allowance for this. Mr Knight maintained that if his wage were to increase to the adult rate, this would not necessarily mean a reduction in his hours as he is considered a valuable member of his team. He has not been trained in budgeting. He currently works 8 - 12 hours a week to accommodate for his university timetable but may do additional hours during the holidays. He considered himself to be as mature at 18 as he is now.
[62] Mr Matthew James 42 is a 20 year old casual employee of The Reject Shop and is currently covered by an enterprise agreement. His regular duties are the same as employees older than him and include customer service, handling cash, store opening and closing, and replenishing stock. Mr James works 20 - 38 hours per week and explained that his hours were largely dependent on the store’s budget. He expressed concern that his hours may be reduced further if his wage increased. Mr James accepted that he has matured over time and this maturity has improved his performance at work.
[63] Mr Dyllon Paynter 43 is 20 years old and has worked at Woolworths as a part-time night fill employee for over four years. Mr Paynter is covered by an enterprise agreement and his wages increased from 80% to 100% of the adult rate when he turned 20, however his duties or responsibilities had not changed. He had performed the same duties for a number of years. He works around 15 - 20 hours a week and is content with the hours of work he is offered. Mr Paynter accepted he has developed greater confidence and maturity in his time at Woolworths and this has made him a better employee.
[64] Ms Laura Davis 44 is 21 years old and works as a part-time shop assistant at Woolworths. Prior to that she was employed by Dan Murphy’s for approximately one year. When she commenced at Woolworths she was provided with induction training, which was not age specific. No further training was subsequently provided to her. She works around 17 hours a week. During her time at Woolworths, she has regularly worked without direct supervision and has covered for the duty manager in his absence. She supervises other employees in the Deli and a number of them were older than her. Ms Davis said that there was no difference in her duties or responsibilities after she turned 21. Ms Davis is currently studying however when she has sought to work more hours during her holidays, she has been not been offered those hours and was told by management that this is due to budget constraints. Ms Davis has been trained in shrinkage and loss prevention.
[65] Mr Clinton Redhouse 45 is 21 years old and works as a part-time shop assistant and night filler at Woolworths. Prior to this he worked for Woolworths Liquor and Dan Murphy’s. Mr Redhouse works around 17 hours a week and is studying information technology. He was provided with training when he commenced with Woolworths at the age of 17 however this was not age specific. No further formal training was provided other than on-the-job training in stock taking and adjusting counts. Mr Redhouse said that the youngest night fill employees were 17 - 19 years old. He said that as his role required the use of a knife, employees had to be at least 16 years old. He acknowledged that carelessness in using a knife could lead to stock damage which is an additional expense to his employer. Mr Redhouse said there was no change to his responsibilities after turning 20. He had undertaken the supervision of other employees without being formally required to do so by his employer and there was also a more senior supervisor rostered at the same time. Mr Redhouse stated that in his time in the retail industry the work he did was “basically the same”, there has been no difference in the standard of work he has produced and within a year of commencing he felt that he was fully competent in his role.
[66] Mr Jack Vince, 46 aged 20, has been employed as a casual shop assistant at Dick Smith for the last four years. He works approximately eight hours a week to accommodate for his university timetable. His role requires product knowledge which he says comes with experience in the job rather than age. In some cases the employer provides information regarding a new product on the intranet site but in many cases product knowledge is developed as the employee is asked questions by customers. Mr Vince accepted that employees who work a greater number of hours per week are exposed to greater customer interaction and thus develop product knowledge faster.
[67] Mr Daniel Newman 47 is 20 years old and works full-time as a night fill employee for Woolworths. One to two nights per week he is the most senior employee on the shift and is responsible for the night fill team. Of the employees he supervises, five or six are older than him. His responsibilities, when he is in charge, include finding replacement staff when someone is unwell, allocating work, ensuring the work is completed and closing the store. Mr Newman was not available for cross examination.
Witnesses called by the employers
[68] The ARA, MGA and Ai Group called seven witnesses all of whom had prepared a written statement. They gave oral evidence and were cross examined. We now summarise their evidence.
[69] The ARA called Ms Kirralee Read, who owns a Bakers Delight store in Victoria. 48 Ms Read stated that her business generally recruits 15 year olds who then work in the business while going through high school and university. She hires junior employees because it reduces the overall cost of wages and provides the business with sufficient flexibility as they are often available to work in the evenings, on weekends or on public holidays. The business has 25 employees and 14 of them are under the age of 21. One is 20 years old. The junior employees are enrolled in Certificate III training in retail, for which the Commonwealth Government pays a completion incentive to the employer of $1500 per enrolment. Ms Read gave evidence about the cost to her business if she had to pay all her 18, 19 and 20 year olds the adult rate of pay. She identified the skills acquired by an employee engaged by Bakers Delight. In her business, an employee would be considered competent in their duties and the work expected of them within six months of commencement and an 18 year old worker, who would typically have three years experience, is considered a senior employee. She maintained, however, that in some aspects of the role of a Retail Employee Level 1 there is an identifiable difference between the performance of an 18 - 20 year old to that of a 21 year old. She said an employee with greater work and life experience is better able to deal with challenging circumstances. If the rate of her two 19 year olds and her 20 year old was increased to 100% of the adult rate, this would increase the annual wages bill by 1.9%. Although this increase would not cause the business to become unviable, she stated that she may not continue to employ 20 year old workers. It is not her current practice to terminate the employment of employees when they turn 21 as so much time and money has been spent training them. If they wanted work, she would find hours that suited.
[70] The ARA also called Ms Julie Tariel, 49 a human resource business partner of LS Travel Retail Pacific. She described the company as one of the world’s largest travel retailers having stores at airports and railway stations. The company has 1000 employees in Australia, most employed under the Award. Nationally, 60 of its employees are under the age of 21 and 58 of them are aged 18 - 20 years. Junior employees are offered a position in a Certificate III or IV course and are also provided with on-the-job training in customer service. Ms Tariel said the majority of employees are casuals and trading hours include early mornings, nights and weekends. Being able to engage juniors lowers the business’ costs. She addressed the cost and other consequences for the business if junior rates were abolished for 18 - 20 year olds. She accepted that most employees are competent within six months of engagement. Although she stated that employees generally become increasingly productive as they become older and more mature, she accepted that in her experience there was no clear difference in the performance, capacity or skill of a 20 year old employee and a 21 year old employee. It depended also on them having had some experience.
[71] The MGA called Mr John Cummings 50 who is responsible for the operation of an independent supermarket in Western Australia which operates under the banner of Independent Grocers of Australia (IGA). He had been an owner of independent supermarkets for 23 years. Employees at his store are engaged under the Award. He had around 19 employees under 18 years of age, two employees aged 18 and no 20 years olds. Most junior employees commence when they are between the ages of 15 and 16, and thus have 2 - 3 years of experience by the time they turn 18. Mr Cummings said there was a great demand by young people in the local community for casual employment opportunities at his store.
[72] Mr Cummings understood the SDA’s claim to be initially for 20 year olds to receive the adult rate and that if successful, to then phase in adult rates for 18 and 19 year olds. He addressed the consequences for his store if employees of 18 years and older were to be paid the adult rate. He would not employ them because an adult could do the job better, quicker and more reliably. He addressed what he saw as the differences in skills between 18 - 20 year olds and an adult.
[73] Mr Cummings stated that most junior employees work approximately eight hours a week due to other commitments such as study and sport, and are reluctant to take on more work. As a result, they are unable to fall into a routine at work and require ongoing supervision by an adult employee. He accepted that they are able to complete basic tasks such as operating the checkout or “filling the milk”. In his experience, adult employees produce a higher level of output, display greater commitment and provide greater value to the employer. He agreed that there was no identifiable difference between the performance of a 20 year old and a 21 year old that is based entirely on the age of the employee, but that experience was the primary factor. He said that the hours worked by the employee, their commitment and intellectual capability were also relevant to the performance of an employee.
[74] Mr Cummings made the observation that, although the output of a 20 year old is not significantly different to a 21 year old employee, the 20 year old employee will be less dedicated. He noted however, that this would depend on the individual. Supervision at his stores does not necessarily entail a senior employee working side-by-side with a junior employee, but it includes the need to check the work done to ensure it was completed correctly. He accepted there was no identifiable difference in the work standard or capacity of a 20 year old to a 21 year old but indicated there are some tasks which cannot lawfully be assigned to a 20 year old employee due to occupational health and safety considerations.
[75] The MGA next called Ms Deborah Smith 51 who is the owner of four independent supermarkets operating in Queensland under the name of FoodWorks. These stores currently employ 13 junior employees aged 18 - 20 out of a total 60 employees, all of whom are engaged under an enterprise agreement. Half of these employees commenced employment with FoodWorks when they were 15 or 16 years old, the other half commenced when they were 17 or 18. Most junior employees engaged by the business are employed on a casual basis which allows the employee and the business to accommodate for commitments such as study. Ms Smith accepted that most employees would be able to competently perform their role within six months from commencement, however this depends on the hours they work.
[76] Ms Smith said her company has a rotational on-the-job training program which all new employees undergo, irrespective of their age. The cost of this training is equivalent to an extra staff member who is rostered to train a new employee. Generally, adult employees are cheaper to train as they require less time in training.
[77] Ms Smith maintained throughout her evidence that junior employees are less accurate than adult employees, they are disinterested, they cause higher rates of shrinkage and more errors. Consequently, Ms Smith moderates the duties assigned to young workers and provides them with specific time frames and instructions which she does not deem necessary in supervising adult employees. She gave her opinion about the differences in maturity between employees at the ages of 17, 18, 19 and 20 and also that of male and female junior employees. In her experience, a 20 year old has never been given the responsibility of supervising other staff.
[78] Ms Smith gave various examples of the difficulties that have arisen as a result of work performed by employees aged 20 or under. She referred to errors in correctly identifying fruits and vegetables at the point of sale, opening boxes in a way that caused the wastage of fresh stock due the immature and rushed approach of young employees, incorrect scanning and ticketing, and a failure to prevent incidences of shoplifting due to a lack of “emotional intelligence”.
[79] Ms Smith said she understood the SDA’s application to be in respect to 20 year olds and if successful it would be phased in for 18 and 19 year olds. Her evidence was directed to that possibility.
[80] The MGA next called Mr Andrew Williamson 52 who owns three independent supermarkets in South Australia operating under the banners of FoodWorks and IGA. Approximately 70% of junior employees at these stores are engaged when they are 15 or 16 years old most being at Retail Employee Level 1 under the Award. His evidence was that employees at his stores are generally competent within six months of commencement.
[81] Mr Williamson gave evidence about the skills gained by junior workers from employment in the retail industry such as punctuality, reliability, accepting responsibility, confidence and problem solving. He said that employing junior workers results in additional expenses to employers such as training, counselling, correcting errors, damaged stock and the costs that result from lower productivity. Junior employees lack the skills acquired by more experienced employees, such as how to deal with busy periods or difficult customers.
[82] Mr Williamson stated that a junior employee may be involved in supervising another employee who would typically be of the same age or younger, in the form of a “buddy system”. Training is provided to all new employees and largely takes place on-the-job. Employees are also offered an enrolment in Certificate II or III training as it is appropriate to the work they perform. An incentive payment from the Commonwealth Government is passed on to the employee when they successfully complete the course. Mr Williamson has previously employed a 20 year old employee as a department manager and paid her 90% of the relevant higher classification rate.
[83] Mr Williamson’s opinion was that compared to 21 year olds, 20 year olds exhibit less productivity, greater recklessness, immaturity, a higher error rate, and unreliability. That was also his impression about 18 and 19 year olds. Young workers also let social problems affect them at work to a greater degree than older workers. Mr Williamson said that at the current rate payable to 20 year olds, he was not dissatisfied with the value that they provide, however if they were to be paid the adult rate he would choose to employ an adult worker instead.
[84] The MGA also relied on the evidence of Mr Frederick Harrison, 53 Chief Executive Officer of Ritchies Stores Pty Ltd (Ritchies) the owner of 70 independent supermarkets and liquor stores operating under the IGA banner. The stores are in Victoria, New South Wales and Queensland. Fifteen of those stores operate under enterprise agreements which entitle 20 year old employees to 95% or 100% of the adult rate of pay. 80% of the 6250 employees engaged by Ritchies are employed on a casual basis, of which half are under the age of 21. He gave evidence about the cost to his business if 18, 19 and 20 year olds were to be paid the adult rate.
[85] Mr Harrison stated that generally a 20 year old employee in his stores would have had between 2 - 5 years experience in their position and would be generally competent in performing their role within 6 - 12 months from their commencement. However, employees do improve with age and maturity, particularly after they complete higher school education or other studies. In his stores, junior employees are given only specific tasks which they are capable of completing. They start young and develop from 15 years up to 21. They have employees at 20 years of age who are department managers and store managers. Duty managers or store supervisors are generally 21 years of age or older.
[86] With respect to training, Mr Harrison gave evidence of sessions run by senior staff or external trainers in addition to on-the-job training which is provided to all employees. The company is required to roster additional staff for training, pay the external trainers, and incur administrative costs. A small percentage of staff is also enrolled in Certificate II, III or IV training in retail. He gave evidence regarding the constant supervision that night fill employees require and the specific training provided to those employed in liquor stores.
[87] He said that approximately 65% of the total expenses incurred by Ritchies are attributable to wages. He accepted that his stores could absorb the cost increase that they would incur if the SDA’s application were successful, however he would consequently prefer to employ juniors aged 15-16 years and adult employees. He said that although larger retail chains may be able to wear the increased cost, independent grocers do not operate on the same model and therefore face greater difficulties.
[88] Ai Group called Ms Julie Toth, its Chief Economist. 54 She is also a member of the Fair Work Commission’s Minimum Wage Research Group. Ai Group relied on a report prepared by Ms Toth in May 2013 which was based on data from the Australian Bureau of Statistics (ABS).
[89] When looking at employment rates in the various industries, the largest proportion of 20 - 24 year old employees are employed in the retail industry (17.3%). Ms Toth’s evidence was that the main source of non-managerial and part-time labour in the retail industry is students aged 15 - 24 years. In June 2011, 1.3 million Australians in this age bracket were studying full-time and living with their parents. These individuals typically move into a skilled occupation when they complete their studies, they are not the primary income earners in their households, and they are only available for work outside of their university class timetable or on weekends. There are also another 840,000 Australians aged between 15 and 24 who are not financially dependent on their parents and 79% of them are employed. The majority of this group is aged 20 - 24 years.
[90] Ms Toth drew two conclusions based on data regarding the participation rates of 20 and 21 year olds in the workforce. Participation rates for 20 year olds are generally two percentage points lower than for 21 year olds which suggests that 20 year olds are less available as potential employees. Further, unemployment rates decrease with each year attained from 20 to 24 years and thus 20 year olds are less attractive to employers as potential employees than slightly older employees, despite the discounted hourly rate that is paid to them. Ms Toth accepted during cross examination, that these figures in fact reflect the market balance for a particular age group based on the interaction between the supply of labour and employer demand for the same labour. The data does not give any insight into the factors that bear upon where this intersection occurs, such as the attainment of many university degrees at the age of 20 or 21 after the completion of a three year course.
[91] Ms Toth gave evidence about the unemployment rates of persons aged 20 - 24 years as at March 2013, based on data reflecting the moving average over the previous 12 months. The data shows that the unemployment rate in that period for 23 - 24 year olds was consistently lower than the unemployment rate of 20 and 21 year old employees. Ms Toth stated that based on this chart the average unemployment rate of 20 year olds was higher during this period by approximately 0.5%. In cross examination she accepted that this was not reflected in the ABS Labour Force data presented in her report which, in March 2013, shows that the average unemployment rate over the previous 12 months of 21 year olds was higher than 20 year olds, whether they were studying full-time or not studying full-time.
Other evidence
[92] In addition to the witness evidence the employer associations also tendered a range of documents. Some of these documents were also relied upon by the SDA and the Commonwealth. A number of these documents are referred to by us later in this decision. It is adequate at this stage that we identify those documents. They included a report of the Low Pay Commission of the United Kingdom titled “Protecting Young Workers: The National Minimum Wage”; 55 Australian Government publications titled “State of Australia’s Young People”;56 “Australian Small Business Key Statistics and Analysis”57 and “Economic Structure and Performance of the Australian Retail Industry”;58 extracts from the New Zealand Office of the Minister of Labour concerning the establishment of a starting out wage,59 and two New Zealand Department of Labour papers, one titled “Youth Minimum Wage Reform and the Labour Market”60 and the other titled “The Impact of the 2008 Youth Minimum Wage Reform”.61
[93] Submissions were made by the Commonwealth and the ACTU which relied upon statistical information about the retail industry, research about the wages prescribed for 20 year old employees in the 122 modern awards and enterprise agreements and assessments of the cost of the SDA claim. We refer to these matters in the context of our considering the modern awards and minimum wages objectives.
Conclusions on the witness evidence
[94] The SDA submitted that there were ten principal conclusions which had been established by the evidence of the witnesses. We set them out below together with our comments about them.
1. At the age of 20, a significant number of employees in the retail industry have at least three years of experience in the industry.
We agree that this conclusion is consistent with the SDA’s witnesses’ evidence. It is also consistent with that of the employers. Many of their employees, who had reached the age of 20, had commenced working for them years earlier when they were 15 or 16 years of age.
2. Most people mature as they get older.
This conclusion, described by Mr Moore as trite and obvious, was one that could be reached based upon the cross examination of the SDA’s witnesses. The majority of them were asked in cross examination if they believed they had matured since they had commenced employment. Most agreed they had.
Although we accept the evidence supports this conclusion we are uncertain about the relevance or utility of it. Unless a definition was given to what the employers intended by their use of the word maturity, it is difficult to comment much further on this conclusion. That a person matures as they age, in the sense of developing mentally and bodily, is accepted. We agree with the SDA’s submission that the cross examination of witnesses merged the questioning about maturity with the evidence about experience. The latter was something more concrete and about which employees could give or concede examples of what they believed they were able to better do after they had worked for a time in the industry. A concession that an employee had matured from age 15 or 16 to age 20 is in itself of little weight. We accept however, as a general proposition, the longer employees work in the industry they will perform their job better and learn more about the store, its products and customers.
3. Maturity is not to be equated with work experience.
The SDA submitted this conclusion comes out of the previous conclusion. We accept the SDA’s submission that what is more important is the experience gained by employees in this industry, particularly in light of the fact that many commence employment at 15, 16 or 17 years of age.
4. There is no difference in the work and duties performed by a 20 year old Retail Employee Level 1 as compared to a 21 year old Retail Employee Level 1.
We accept that the evidence supports a general conclusion to this effect. The evidence relied upon consistently stated that the nature of the work performed by a 20 year old and a 21 year old employee in the retail industry is the same. The duties and responsibilities assigned to and undertaken by 20 year olds did not change after the employee turned 21. The evidence did not establish any discernible improvement in the performance of duties between the ages of 20 and 21 years. There was also evidence before us of junior employees supervising their colleagues who were often older than them.
Much of the employer evidence was also supportive of this conclusion. Some employers, however, said that there was a difference. Of those who insisted there was a difference, little detail or actual examples were given; it was their impression that there was a difference. No attempt was made by the employers to lead any evidence of comparisons made between the work done by these two groups of employees. There was no identification of any material difference in the tasks they undertook, the manner in which they completed them or the standard to which they were done.
There was no persuasive evidence to establish that it is more likely that a 20 year old will need to be supervised than a 21 year old. Many of the witnesses gave evidence that they had worked as junior employees without direct supervision. There is no evidence of any difference between a 20 year old employee’s understanding of such topics as shrinkage, rostering and budgeting to that of a 21 year old.
5. Most retail employees achieve a satisfactory level of proficiency in respect of Retail Employee Level 1 duties and responsibilities after about six months of employment.
We accept that this conclusion is established by the evidence of both the employees and the employers. After 6 months in their position, the evidence suggests that most employees are both competent and proficient in their role.
6. Most witnesses called by the SDA were covered by an enterprise agreement, not the Award.
Although not strictly expressed in accordance with the relevant terms of the Act, we accept this conclusion. In fact the Award does cover all of the employees but in the case of the majority, where an enterprise agreement applied to them, it was that instrument which regulated their wage rates. 62 The SDA relied on a comparison of the Retail Employee Level 1 classification criteria in the Award with that for a base or entry level employee in nine relevant enterprise agreements and submitted they clearly align.63 The job functions are comparable. Although the employers did not contest this conclusion they did note that the enterprise agreements were ones predominantly applying to large employers.
7. The employer witnesses have misunderstood or deliberately ignored the SDA’s application. A number of the employer witnesses had addressed the consequences for their business if junior rates for 18, 19 and 20 year olds were abolished. They had not addressed the claim, confined as it was, to 20 year olds being paid the adult rate.
We acknowledge that a significant amount of the employers’ evidence referred to all employees who are in the junior employee age ranges which encompass employees of 15 - 20 years. On numerous occasions, when employers gave evidence about juniors, it was not clear which age groups they were addressing. To that end, we agree with the SDA that there is little employer evidence that concentrates on 20 year old employees who are the focus of this matter. We also accept that some of the employers gave evidence which seemed to relate to an application that was in fact seeking adult rates for 18, 19 and 20 year olds, or at the least, was the first of a number of increases that would phase in the adult rate for these employees starting with 20 year olds.
Having made the above observations we are not, however, prepared to go further as the SDA encourages us to and make any finding that the employers have deliberately ignored the scope of the application. We note that although the originating application to vary the Award and the grounds in support refer only to 20 year olds being paid the adult rate, a document titled “Outline of submission” which accompanied the application addressed the view the SDA held about the “inequity” of the rates paid to 18, 19 and 20 year olds. It described the application as a first step in the process to move the Award’s junior rates to a fairer level. The SDA’s first written submission was replete with references to the long held complaint of the SDA that the retention of junior rates for 18, 19 and 20 year olds is inequitable, discriminatory and a relic of the past. We note however, that in the hearing before us, the SDA made clear that its application related solely to 20 year old employees.
Although we are not persuaded to reach the adverse conclusion sought by the SDA, the fact that much of the employer evidence addressed either all junior employees or those aged 18, 19 and 20 does have some ramifications to our later consideration of whether the Award is meeting the modern awards and minimum wages objectives.
8. There is no additional training or supervision required or provided to 20 year old employees and the training that is provided is not age related.
We accept that the evidence establishes that most employees receive training at the commencement of employment and that it was on-the-job training. Some employers rotated their new starters around the different areas of their business and some assigned supervisors or managers to oversee a new employee. None of this training was related to an employee’s age. It was usual for a new starter to be provided with induction training when they commenced employment and this applied to all new employees, irrespective of their age. On-the-job training is provided by some employers, particularly where it is necessary to maintain up-to-date product knowledge. There was evidence that a small number of employees had undertaken certificate levels II, III and IV traineeships but again there was no suggestion this was age specific. The only evidence of training that was related to the employee’s age was where an employee turned 18 and may then be trained in driving a forklift.
[152] The SDA noted that 20 year olds constitute a relatively small proportion of the total number of employees in the retail industry. Referring to DEEWR estimates, it asserted that any increase in the industry’s total wage bill would be offset by the productivity of 20 year old employees who generally have three or more years of experience. It also relied on the increasing incidence of 20 year old employees being paid the adult rate under enterprise agreements. A compendium of nine enterprise agreements covering large retail businesses was provided to us. 104 Of those agreements, all but three currently entitle 20 year old workers to the adult rate of pay.
[153] The SDA took us to findings made by the Full Bench in the Penalty Rates Decision regarding the circumstances of the retail industry. The Full Bench said:
“[147] The retail industry remains broadly robust and generally profitable. There have been some changes in the retail industry generally, including as a result of some incremental increase in online sales and more recent economic challenges facing the Australian economy more generally. This has led to pressure on prices and overall sales volumes (with the exception of food retailers whose volumes have generally increased) and upon employment growth when compared to previous trends.
[148] Although trading conditions have tightened for many retailers in recent years, there has not been any severe deterioration in overall economic conditions in the retail industry since the General Retail Award commenced operation in 2010.” 105
[154] We also note in the Annual Wage Review 2012 - 2013 decision, the Minimum Wage Panel, in its conclusions on “The Economy” said:
“[20] The most award-reliant sectors of the economy continued to have a mixed experience over the past year. Most have had a fall in hours worked and in employment, although rises in profitability and output have been stronger. The Retail trade industry in particular has improved both sales and profitability, while wages growth and employment in this sector has been below the average for all industries. The diversity in outcomes in respect of output, profits, employment, and wages between and within the award-reliant industries suggests that factors other than recent minimum wage increases have driven outcomes within those industries.” 106
[155] The Commonwealth noted that 25.6% of retail employees were award reliant and 54% of them are employed as casuals. It also noted that ABS data indicates that 3.9% of all retail employees are 20 years old. 107 In assessing the cost of the claim to the industry, the Commonwealth relied on analysis it had undertaken about the scope of enterprise agreement coverage of 20 year olds in the industry and the potential cost to the industry if the SDA claim was granted. In respect to the incidence of enterprise agreement coverage, it submitted that a significant proportion of retail enterprise agreements and individual arrangements, covering some 56% of 20 year olds in the industry, already provide for the payment of adult rates to 20 year olds.108 It also submitted that its analysis shows that almost 93% of 20 year old retail workers who are covered by enterprise agreements are entitled to the adult rate of pay. It acknowledged the high incidence of enterprise agreements for large employers within its sampled group (i.e. those with 100 or more employees) and that these employers overwhelmingly paid 20 year olds the adult rate.109 It noted that the disproportionate number of agreements covering these large employers could impact the extrapolation of the results to the whole industry. The DEEWR estimated that if the claim was granted, retail industry employers would face an increase in labour costs of 0.06%, or 0.07% if the level of award reliance of 20 year olds was increased to 30%. The Commonwealth also estimated that small business, which it described as being typically more award reliant, would face an increase of 0.1%.110 The Commonwealth submitted that any cost increases faced by business were limited and affordable.
[156] The Commonwealth referred to a Government publication titled “Australian Jobs 2013”, 111 which projects retail trade employment to grow by 8.9% over the period of November 2012 to November 2017.
[157] The ACTU made submissions in support of the SDA’s position. It submitted that any cost increase to employers would be minimal and affordable. It relied on the trend towards 20 year old employees being paid the adult rate of pay under enterprise agreements as an indication that there is no potential negative impact on business, productivity or competitiveness. It also pointed to the 97 modern awards that do not contain junior rates of pay, including some industries that engage a significant number of junior employees. The ACTU submitted that the claim is affordable to the industry, which experienced 3.1% growth and a 3% rise in turnover in 2012.
[158] The ACTU placed weight on the absence of any evidence called by the employer parties regarding the potential cost impact of the claim. 112
[159] The employers submitted that the DEEWR’s estimates regarding the potential impact of the claim are flawed as they assume that all 20 year old employees engaged under the Award are classified at Retail Employee Level 1. Further, the calculations do not contemplate the payment of penalty rates and the increase in the industry’s wage bill is understated by expressing it as a percentage of the total industry wage bill, which would take into account wages paid to employees not covered by the Award.
[160] The employers did not agree with the SDA’s submission about the claim not impacting the viability of retail businesses and they referred to the evidence of Mr Harrison and Ms Read regarding the financial strain that their respective enterprises are under, and the increased pressure they would face as a result of wage increases. The employers emphasised the adverse impact of the claim on independent retailers who are largely award reliant and the absence of any trade-off for employers.
[161] The employers submitted that while the variation sought may not be relevant to large retailers that currently pay the adult rate to 20 year olds, it was of great significance to small and medium-sized employers as well as those based in rural and regional areas as they are, to a greater extent, award reliant. They submitted that the impact that the claim may have on small and medium-scale businesses had been inadequately addressed by the SDA. In this context reference was made to the objects of the Act which include provision for “a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by ... acknowledging the special circumstances of small and medium sized businesses”. 113 They noted that 38.5% of employees in the retail sector are engaged by small businesses (i.e. those with fewer than 20 employees). If medium sized employers (i.e. with 20 - 199 employees) are added, they would make up 56.6% of all retail employers.114 Given the dependence of small and medium retailers on the Award, and the large proportion of employees aged between 15 - 24 years engaged in the industry, they submitted that the claim would result in a significant cost impact on small and medium businesses.
[162] The employers referred to various survey outcomes regarding business conditions in the retail industry. The National Australia Bank Monthly Business Survey (March 2013) and the National Australia Bank Quarterly Business Survey (March quarter 2013) reported a deterioration in activity in the retail industry. ABS Business Indicators also showed negative growth from the sale of goods and services in NSW. They submitted that it is important to have regard to current economic and business conditions when considering implementation of a wage increase. Current business conditions suggest that the variation sought could result in unfavourable outcomes for the industry. They also noted that since the Award had come into operation, businesses in some States had incurred additional labour costs, especially higher penalty rates. To add further costs would only serve to undermine the modern awards objective.
[163] Another consideration which arose in the parties’ submission related to a contest about whether additional training costs were associated with 20 year old employees. It was suggested by employers that these additional costs partly justified a discounted rate being paid to these employees, a proposition the SDA and the Commonwealth challenged. The SDA submitted that retail workers are not provided with age-specific training, skills, and young workers commonly work without direct supervision and often supervise other employees. Relying on a Productivity Commission Report of November 2011, the Commonwealth submitted that there is little difference in the formal qualifications of workers aged above and below 20 years and that employers in this industry are less likely than in other industries to provide any formal training. It also noted that they spend considerably less on training than that invested by employers in all industries. 115 The employers made general submissions about the costs of training young employees, however it was not clear what is said to be the cost of training for 20 year olds and how that may be relevant to the cost of allowing the variation sought by the SDA. In our opinion the evidence does not provide any basis for a discount on the wage for a 20 year old employee which may be justified by there being any additional training and consequential costs to an employer with respect to these employees.
[164] We have considered all of the submissions, the estimations made by the Commonwealth and the reports the parties took us to. We accept we should apply considerable caution to the estimates made by the Commonwealth and have done so. On the other hand, we were not provided with much evidence as to estimates the employers had undertaken about the cost of the claim. That which we were given was specific to a small number of businesses and not confined to their 20 year old employees. Having considered the submissions, we assess the likely cost impact of the claim to be moderate. Further, that impact will be reduced as a consequence of the period of service requirement we have decided to introduce. We are not persuaded that the provision of adult rates to 20 year old retail employees will have a significant negative impact on business costs, nor on the viability of retail businesses. We are not persuaded it will have a discernible impact on employment growth.
[165] Before we leave our consideration of these provisions of the modern awards and minimum wages objectives, we should refer to the potential for a flow on of this claim to other awards. Little was said about this consideration. The SDA submitted that the consequential cost impact for other industries is limited. Industries covered by modern awards that do not contain junior rates do not face any possible flow on effects. It acknowledged that some impact may be felt by the fast food industry, however it noted that the scheme of the Act does not readily allow for a similar variation, if sought, to be made to other modern awards in the event its application was granted. We note the employers also identified the fast food industry as being exposed to a possible comparable claim.
[166] The employers submitted that there was also the potential that the SDA would seek to eliminate junior rates in the Award for those aged 18 and 19. They referred to the policy position of the SDA that discounted rates for 18, 19 and 20 year olds were not justified.
[167] We have taken these considerations into account. We agree with the SDA that it is not readily apparent that a claim similar to this can be made in respect of any of the other employees to whom a junior rate is paid. This claim is made in the context of the two year review of awards and in accordance with the Transitional Provisions Act. No further claim can be made under that Act. The considerations in this case are specific to the claim for 20 year olds in the retail industry to be paid the adult rate. We do not consider it to be a precedent for any other claim which may be made either in respect to the Award or any other modern award.
Conclusions
[168] We have carefully considered all the evidence and submissions presented in the proceedings together with the relevant legislative provisions relating to the transitional review of the Award and the determination of the application before us. We have reached the following conclusions in relation to the issues raised relating to junior rates of pay and whether it is necessary and appropriate at this time to vary the Award so as to provide adult rates for 20 year old retail employees.
[169] We have decided that the Award is not achieving the modern awards and minimum wages objectives. We consider that the discounted rate for all 20 year old retail employees is not a fair and relevant minimum safety net. In reaching this conclusion the witness and documentary evidence specific to the retail industry has been of primary importance.
[170] The SDA submitted that we should draw various conclusions based on the evidence presented in this case. Our comments and findings on the evidence are set out earlier in this decision. In general we are of the view that the evidence, considered in the context of the modern awards and minimum wages objectives, predominantly weighs in favour of adjusting the rates of pay for 20 year old retail employees. In particular we have decided that the adjustment is appropriate and is necessary for those objectives to be achieved.
[171] The evidence presented by both the SDA and the employers generally supports a conclusion that most junior retail employees achieve a satisfactory level of proficiency in their roles after about six months in employment. Further, much of the evidence suggests that there is little difference in the duties and responsibilities assigned to 20 and 21 year old retail employees or in the level of supervision required in relation to those employees.
[172] Having regard to the evidence before us, we have decided that it is appropriate that 20 year old retail employees should be entitled to adult rates of pay provided that they have worked for the employer for more than six months. This would recognise the work performed by experienced 20 year old employees in the retail classifications and would provide an appropriate balance between the various considerations relevant in the setting of junior rates generally and in the context of the retail industry. Although such a service requirement is not a feature of enterprise agreements in the retail industry which provide adult rates for 20 year old employees or in other awards which so provide, we consider that the requirement is appropriate in the circumstances of the retail industry generally and having regard to the evidence presented in this case. It will ensure that 20 year old employees receiving adult rates under the Award will have the knowledge and experience which comes from having worked for their employer for at least six months.
[173] Given the nature of employment in the retail industry, we have not sought to specify the number of hours or the range of work or training that must be worked or undertaken during the six month qualifying period. We would expect that many employees will continue to be engaged in their twentieth year on a similar basis and with similar hours of work as previously. However, we accept that some employees might be engaged on a different basis. We have sought to provide both a fair and easy to administer basis for recognising the work performed by employees of 20 years of age in the retail industry who have had more than six months experience in the employer’s workplace.
[174] In varying the Award to give effect to this decision, we are mindful of the cost implications for some employers and the transitional arrangements that are still applicable under the Award. We have therefore decided that the Award should be varied so that the new rates for 20 year old employees in retail classifications will be phased in as follows: 95% of the adult rate to apply from the first pay period commencing on or after 1 July 2014; and 100% of the adult rate to apply from the first pay period commencing on or after 1 July 2015.
[175] The SDA should prepare a draft order to vary the Award to give effect to this decision and provide the draft order to the Full Bench within 7 days.
SENIOR DEPUTY PRESIDENT
Appearances:
S Moore of counsel, J Willey and J Fox for the SDA
J Dolan for the ACTU
M Tehan and T Pick, solicitors, for the Commonwealth
N Tindley, solicitor,for the ARA
S Elliffe and D Allison for the NRA
D Sztraijt for the MGA
B Ferguson for Ai Group
S Haynes for ABI and the ACCI
J O’Dwyer for the ECA
K McCosh for the NECA
Hearing details:
Sydney, and Melbourne (mentions by video link):
April 23 and June 6.
2013.
Melbourne:
July 2 - 4.
2013.
Sydney:
July 15 - 17.
2013.
1 MA000004.
2 [2012] FWAFB 5600.
3 Note that s.134 has been amended since this matter was heard.
4 See s.576J(1)(a).
5 [2008] AIRCFB 550.
6 Exhibit SDA24, tab 1.
7 AP796250CRV.
8 Exhibit SDA24, tab 2.
9 Exhibit SDA24, tab 3.
10 AN120499.
11 Exhibit SDA24, tab 4.
12 Exhibit SDA24, tab 5.
13 Exhibit SDA24, tab 6. Transcript of proceedings on 8 August 2008, PN847.
14 Exhibit SDA24, tab 6. Transcript of proceedings on 8 August 2008, PN851.
15 Exhibit SDA24, tab 8.
16 Exhibit SDA24, tab 9.
17 [2008] AIRCFB 717.
18 Exhibit SDA24, tab 10.
19 Exhibit SDA24, tab 11.
20 Exhibit SDA24, tab 12.
21 Exhibit SDA24, tab 13. Transcript of proceedings on 5 November 2008, PN3648.
22 Exhibit SDA24, tab 13. Transcript of proceedings on 5 November 2008, PN3376.
23 [2008] AIRCFB 1000.
24 [2008] AIRCFB 1000 at [71].
25 [2008] AIRCFB 1000 at [135]. See also [287].
26 [2010] FWAFB 305 at [25].
27 [2012] FWAFB 5600.
28 Exhibit SDA1.
29 Exhibit SDA2.
30 Exhibit SDA3.
31 Exhibit SDA4.
32 Exhibit SDA5.
33 Exhibit SDA6.
34 Exhibit SDA7.
35 Exhibit SDA8.
36 Exhibit SDA9.
37 Exhibit SDA10.
38 Exhibit SDA11.
39 Exhibit SDA12.
40 Exhibit SDA13.
41 Exhibit SDA14.
42 Exhibit SDA15.
43 Exhibit SDA16.
44 Exhibit SDA17.
45 Exhibit SDA18.
46 Exhibit SDA19.
47 Exhibit SDA20.
48 Exhibit ARA1.
49 Exhibit ARA2.
50 Exhibit MGA1.
51 Exhibit MGA2.
52 Exhibit MGA3.
53 Exhibit MGA4.
54 Exhibit AIG1.
55 Exhibit ARA3, annexure C. United Kingdom, Low Pay Commission, Protecting Young People: The National Minimum Wage (March 2004).
56 Exhibit AIG2, attachment 1. Kristy Muir, Killian Mullan, Abigail Powell, Saul Flaxman, Denise Thompson and Megan Griffiths, State of Australia’s Young People: A Report on the social, economic, health and family lives of young people, Office for Youth (October 2009).
57 Exhibit ECA1, attachment 3. Megan Clark, Melissa Eaton, David Meek, Emily Pye and Razib Tuhin, Australian Small Business: Key Statistics and Analysis, Department of Industry, Innovation, Science, Research and Tertiary Education (December 2012).
58 Productivity Commission, Economic Structure and Performance of the Australian Retail Industry, Report no. 56 (4 November 2011). The Commonwealth also tendered extracts from this report (exhibit Commonwealth2).
59 Exhibit ECA1, attachment 2. Office of the Minister of Labour, Cabinet Paper: Starting Out Wage Policy (27 July 2012).
60 Dean Hyslop and Steven Stillman, Youth Minimum Wage Reform and the Labour Market, New Zealand Treasury Working Paper 04/03 (March 2004).
61 Dean Hyslop and Steven Stillman, The Impact of the 2008 Youth Minimum Wage Reform, Department of Labour (August 2011).
62 See ss.48 and 57 of the Act.
63 Exhibit SDA22.
64 Junior Rates Inquiry, Report of the Full Bench Inquiring Under Section 120B of the Workplace Relations Act 1996, Print R5300 (4 June 1999).
65 Junior Rates Inquiry at p.x, para [5](ii).
66 See generally Junior Rates Inquiry, section 4.3 dealing with “Considerations Reducing the Desirability of Replacing Junior Rates”.
67 Junior Rates Inquiry at p.xii, para [8](i).
68 Junior Rates Inquiry at p.xvi, para [9](v).
69 Junior Rates Inquiry at p.140, [4.4.4].
70 Junior Rates Inquiry at p.141, [4.4.5].
71 See s.3 of the WR Act.
72 See s.143(1C)(ea) of the WR Act.
73 See s.88B(4) of the WR Act.
74 See s.294(1) of the Act.
75 See ss.153(3) and 195(3) of the Act.
76 See s.12 of the Act.
77 Transcript of proceedings on 16 July 2013, PN4708 - PN4710 and Exhibit ACTU2 at 19 - 21.
78 See s.12.
79 For example, drivers licence restrictions.
80 Exhibit Commonwealth1.
81 MA000010.
82 Exhibit Commonwealth1.
83 For example see [2010] FWAFB 4000 at [237] and [2013] FWCFB 4000 at [367].
84 [2013] FWCFB 1635 at [212].
85 See also a finding made by in the Penalty Rates Decision at [214].
86 Exhibit ACTU1, para 19. ABS, Underemployed Workers, Australia, Catalogue no. 6265.0 (September 2012).
87 Exhibit ACTU2, paras 9 and 10. ABS, Average Weekly Earnings, Australia, Catalogue no. 6302.0 (November 2012).
88 ABS, Labour Force, Detailed, Quarterly, Catalogue no. 6291.0.55.003 (November 2012).
89 Exhibit Commonwealth1; ABS, Employee Earnings and Hours, Australia, Catalogue no.6306.0 (May 2012); and Fair Work Commission, Research Report 4/2013: Retail Trade Industry Profile (February 2013).
90 Exhibit AIG2, attachment 1. Kristy Muir, Killian Mullan, Abigail Powell, Saul Flaxman, Denise Thompson and Megan Griffiths, State of Australia’s Young People: A Report on the social, economic, health and family lives of young people, Office for Youth (October 2009).
91 Exhibit ARA3, para 46.
92 Exhibit ABI2, para 20.
93 Exhibit Commonwealth1, para 5.4.
94 [2010] FWAFB 4000 at [275].
95 [2012] FWAFB 5000 at [210].
96 Exhibit AIG2, paragraphs 99 - 102. ABS, Labour Force, Australia, Catalogue no. 6202 (April 2013).
97 Exhibit Commonwealth1.
98 Exhibit ARA3, annexure A.
99 [2013] FWCFB 4000 at [438] - [442].
100 Exhibit SDA27. Dean Hyslop and Steven Stillman, Youth Minimum Wage Reform and the Labour Market, Institute for the Study of Labour, Discussion paper no. 1091 (March 2004) at p.16. See also transcript of proceedings on 16 July 2013, PN4644 - PN4645.
101 Dean Hyslop and Steven Stillman, The Impact of the 2008 Youth Minimum Wage Reform, Department of Labour (August 2011).
102 Exhibit ARA3, annexure C. United Kingdom, Low Pay Commission, Protecting Young People: The National Minimum Wage (March 2004).
103 Transcript of proceedings on 2 July 2013, PN795 - PN796 and transcript of proceedings on 16 July 2013, PN4613.
104 Exhibit SDA21.
105 [2013] FWCFB 1635.
106 [2013] FWCFB 4000.
107 Exhibit Commonwealth1, attachment C.
108 Exhibit Commonwealth1, para 2.1(c).
109 Exhibit Commonwealth1, para 5.1 - 5.4.
110 Exhibit Commonwealth1 and transcript of proceedings on 16 July 2013, PN4821.
111 DEEWR, Australian Jobs 2013 (2013).
112 Exhibit ACTU2.
113 Exhibit AIG1. See s.3(g) of the Act,.
114 Exhibit AIG1, attachment 2. Megan Clark, Melissa Eaton, William Lind, Emily Pye and Laura Bateman, Key Statistics: Australian Small Business, Department of Innovation, Industry, Science and Research (2011) at p.7.
115 Exhibit Commonwealth2. Productivity Commission, Economic Structure and Performance of the Australian Retail Industry, Report no. 56 (4 November 2011).
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