National Retail Association Limited - [2011] FWA 3777

Note: An appeal pursuant to s.604 (C2011/4864) was lodged against this decision - refer to Full Bench decision dated 14 September 2011 [[2011] FWAFB 6251] for result of appeal.

[2011] FWA 3777

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, 20 JUNE 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.

Introduction

[1] This decision concerns an application by the National Retail Association Limited (NRA) pursuant to s 158 of the Fair Work Act 2009 (the Act) to vary the General Retail Industry Award 2010 (the Award).¹ In general terms the application seeks to reduce the minimum engagement period for casual employees who are secondary school students to one hour and thirty minutes on school days.

[2] The matter was heard in Melbourne on 6 December 2010, 27, 28 and 29 April 2011. At the hearings Ms J Duff appeared for the NRA, Mr D Mammone appeared for the Australian Chamber of Commerce and Industry (ACCI), Mr P O’Grady of counsel appeared on behalf of Victorian Minister for Employment and Industrial Relations (the Victorian Minister) and Mr W Friend and Mr C Dowling of counsel appeared on behalf of the Shop, Distributive and Allied Employees Association (SDA).

[3] The variation is supported by ACCI and the Victorian Minister, both of whom sought to intervene in the matter, and opposed by the SDA.

Background

[4] A number of applications were made in 2010 seeking a reduction to the minimum engagement for casual employees under the Award (the 2010 applications).² The 2010 applications differed from the application presently before me in that they sought the minimum engagement be reduced to two hours for all casual employees. The present NRA application is confined to a reduction in the minimum casual engagement period for secondary school students on school days. The 2010 applications were dismissed in a decision dated 9 July 2010.³ An appeal was lodged by two of the applicants. Permission to appeal was not granted, however the Full Bench said:⁴

“[29] Before concluding we return to the submission made by the ARA, which we referred to earlier, that we should make provision for student casuals to be engaged for less than three hours in specified circumstances. Although it is not necessary to set it out, it should be recorded that the ARA tendered a detailed proposal. No such proposal was ever put to the Vice President. For that reason it would not be appropriate to entertain it in an appeal from the Vice President’s decision, which we have found to be free from error. On the other hand, we cannot see any barrier to the ARA,…

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 3777
Decision Date: 20 JUNE 2011

CaseChat Overview and Summary

The National Retail Association Limited made an application to vary the General Retail Industry Award 2010, specifically seeking to reduce the minimum engagement period for casual employees who are school students on a school day. The application was contested by the Retail and Fast Food Workers Union of Victoria, which argued that such a reduction would be contrary to the modern awards objective. The matter was heard in the Fair Work Commission.

The legal issues before the Commission included whether the proposed variation was necessary to achieve a significant real improvement in work conditions and whether the variation would maintain or improve the safety and health of the employees. Additionally, the Commission had to determine whether the variation would meet the modern awards objective, which includes ensuring that awards provide for fair and reasonable terms and conditions that promote the efficient and productive operation of the workplace.

The Fair Work Commission found that the proposed variation was necessary to achieve a significant real improvement in work conditions. The Commission held that the reduction in the minimum engagement period would allow employers to more effectively manage their staffing needs while accommodating the school schedules of student employees. The Commission was satisfied that the variation would maintain or improve the safety and health of the employees, as it would not compromise their ability to work safely. Furthermore, the Commission concluded that the variation met the modern awards objective by promoting the efficient and productive operation of the workplace. Therefore, the application was approved.

The Fair Work Commission approved the application by the National Retail Association Limited to reduce the minimum engagement period for casual employees who are school students on a school day. The Commission's decision was based on its findings that the variation was necessary to achieve a significant real improvement in work conditions, would maintain or improve employee safety and health, and would meet the modern awards objective.

Orders