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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FWA 6602
Decision Date: 23 SEPTEMBER 2011

CaseChat Overview and Summary

The National Retail Association Limited lodged an application seeking to vary the General Retail Industry Award 2010 to reduce the minimum engagement period for casual employees who are school students on a school day. The application was heard in the Fair Work Commission, with the primary focus on whether such a variation is necessary to achieve the objectives of the modern awards system. The legal issues centred on whether the proposed reduction would align with the modern awards' objective of maintaining fairness and flexibility in the workplace while addressing specific concerns related to school students' availability and engagement.

The Commission examined the application under the Fair Work Act 2009, particularly sections 134 and 158. Section 134 outlines the process for making variations to an award, while section 158 specifies the criteria for determining if a variation is necessary to achieve the modern awards' objectives. The Commission considered evidence and submissions from both the applicant and other interested parties, evaluating whether the proposed reduction would effectively address the specific needs of school students without adversely affecting broader employment conditions.

The Fair Work Commission determined that the proposed variation was not necessary to achieve the objectives of the modern awards system. The Commission found that the existing provisions in the award adequately balanced the needs of employers and school student employees. The evidence presented did not demonstrate that the proposed reduction was essential to achieve the modern awards' objectives. Therefore, the application was dismissed.

No specific orders were made as the application was dismissed. However, the Commission's decision clarified the criteria for varying awards to reduce minimum engagement periods for school student employees, providing guidance for future applications in this area.

Orders