National Retail Association Limited

[2011] FWA 6602

[2011] FWA 6602

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.158 - Application to vary or revoke a modern award

National Retail Association Limited
(AM2010/226)

Retail industry
VICE PRESIDENT WATSON	SYDNEY, 23 SEPTEMBER 2011

Application to vary the General Retail Industry Award 2010 - proposed reduction to minimum engagement period for casual employees who are school students on a school day - whether variation necessary to meet the modern awards objective - Fair Work Act 2009 - ss 134, 158.

[1] On 20 June 2011 I handed down a decision in relation to this application. 1 In that decision I said:

“[47] Most of the circumstances and arguments advanced by the NRA in this matter related to circumstances where either employment cannot be offered to school students because of the existing three hour minimum engagement period or where students simply cannot be available for a three hour engagement that employers may be prepared to make available. However the variation to the award sought by the NRA seeks a reduction in the minimum engagement period in wider circumstances where three hour engagements may still be possible. These wider circumstances potentially impinge on the viability of existing employment practices that apply to school students. In short, the increased opportunities provided to some school students may result in a detriment to other school students and the proposed variation may not give rise to a net increase in social inclusion or employment opportunities.

[48] I consider that a modified variation to the Award should be made which confines the proposed exception to the three hour minimum engagement period to circumstances where a longer period of employment is not possible. This will ensure that where a longer period is possible the three hour minimum will continue to apply and school students will continue to have the benefit of such an engagement. Where only a shorter period is possible, then a shorter period of engagement can be utilised and employment that would not otherwise be available may thereby become available. Those who can benefit from such employment will be able to take up the anticipated enhanced employment opportunities. Those who do may well be students in different circumstances to many of those who are currently engaged in employment after school and require the benefits of a three hour engagement. Given the circumstances in which the modified clause will operate I consider that the benefits of promoting social inclusion arising from the variation mean that the change is necessary to achieve the modern awards objective.

[49] I envisage that my intention could be achieved by way of additional conditions on the operation of the exception to the three hour minimum. I publish a draft determination together with this decision. Those wishing to comment on the draft may do so in writing within seven days of the handing down of this decision. I will finalise the variation after considering the additional submissions.”

[2] My decision was stayed pending an appeal before any determination was issued. The appeal against my decision was dismissed in a decision handed down on 14 September 2011. 2

[3] Submissions on the wording of the Determination were received from the Shop, Distributive and Allied Employees Association (SDA) on 27 June 2011 and Toy Kingdom, Warragul on 28 June 2011. The National Retail Association indicated to my chambers on 21 September 2011 that it did not wish to make further submissions on the terms of the draft Determination. I have considered the two submissions received on the terms of the Determination.

[4] The SDA submitted that the reference to ‘operational requirements” in proposed subclause (d) is too broad and should be replaced by words which confine the circumstances to the period between which an employee can attend for work and the regular closing time of the employer’s business. Toy Kingdom, Warrugal submits that the phrase proposed by the SDA could create other practical problems.

[5] I favour the retention of the proposed clause and a less prescriptive approach than that proposed by the SDA. In my view it is desirable that the concept of availability is broader than availability between these hours. There may be work available for students after closing time, but the extent of this work may vary considerably in the various operations covered by the General Retail Industry Award 2010 (the Award). 3 Any attempt to restrict the scope of this condition will give rise to other issues.

[6] The proposed clause imposes a condition based around the concept of operational requirements. This is a term used elsewhere in the Fair Work Act 2009 (the Act), although, as noted by the SDA, it is not defined in the Act. An employer who seeks to utilise the clause will obviously need to establish that the condition is satisfied by reference to the circumstances of its business. If there are practical difficulties concerning the operation of this clause they can be raised and considered as part of the review of the Award in 2012.

[7] For similar reasons I am not attracted by the proposed variation to sub-clause (b). This would apparently prevent a school student working a shorter shift being engaged after 6.30 pm, even when there is an operational need and the student is available to continue working. It may be, for example, that a work period of 5.00 pm to 7.00 pm satisfies all other conditions.

[8] I do not consider it necessary to incorporate other restrictions or processes as sought by the SDA. Operations in the retail industry vary widely in their size, needs and resources. I believe that they should be free to develop processes that are suited to their circumstances. Again if there are practical problems or incidents of unfairness arising from the operation of these provisions, evidence of these problems can be considered in the forthcoming award review.

[9] A Determination varying the Award is issued in conjunction with this decision. 4 The variation will operate from 1 October 2011.

VICE PRESIDENT WATSON

Appearances:

J. Duff for the National Retail Association

N. Tindley for the Australian Retailers Association

D. Mammone for the Australian Chamber of Commerce and Industry

P. O’Grady of counsel for the Victorian Minister for Employment and Industrial Relations

W. Friend with C. Dowling and of counsel for the Shop, Distributive and Allied Employees Association

Hearing details:

2010.
Melbourne.
6 December.

2011.
Melbourne.
27 - 29 April.

Final written submissions:

Shop, Distributive and Allied Employees Association, 27 June 2011

Toy Kingdom, Warragul, 28 June 2011

 1   [2011] FWA 3777

 2   [2011] FWAFB 6251

 3   MA000004

 4   PR510566

Printed by authority of the Commonwealth Government Printer

<Price code A, MA000004  PR514981 >