National Retail Association Limited

[2010] FWA 8837

FAIR WORK AUSTRALIA

STATEMENT

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

National Retail Association Limited
(AM2010/226)

Australian Retailers Association
(AM2010/236)

GENERAL RETAIL INDUSTRY AWARD 2010
VICE PRESIDENT WATSON	MELBOURNE, 17 NOVEMBER 2010

Applications to vary the General Retail Industry Award 2010.

[1] These two matters seek substantially the same variation concerning minimum engagements for school students who work as casual employees in operations covered by the General Retail Industry Award 2010 (the Award). 1

[2] Fair Work Australia (FWA) has received various correspondences in relation to the programming of the matters for hearing.

[3] On 8 November 2010 correspondence was received from the Australian Retailers Association (ARA) requesting that an application it had filed to vary the Award (AM2010/236) be joined with the application of the National Retail Association Limited (NRA) (AM2010/226). The ARA in the 8 November letter also sought an adjournment of both matters. The NRA opposed such an adjournment, the Shop, Distributive and Allied Employees Association (SDA) supported the adjournment.

[4] Following the receipt of the ARA’s application and correspondence, directions were made for the filing of material in response to the application and the matter was listed for hearing jointly with the NRA application on 6 and 7 December 2010.

[5] Further correspondence was received from the ARA, dated 12 November 2010 requesting the de-coupling of its application and the NRA’s application. The ARA reiterated its request for an adjournment of its application and requested an extension of time to file material in relation to its application.

[6] Correspondence dated 14 November 2010 was received from the SDA seeking the dismissal of the NRA application on the basis that the NRA had not filed material in accordance with the amended directions of 9 November 2010 in AM2010/226. The SDA further sought the dismissal of the application on the basis that the NRA had not provided evidence of its standing to make such an application in light of the decision 2 in relation to its application to vary the Fast Food Industry Award 2010. 3

[7] The NRA‘s evidentiary material and outline of submissions was received late on 12 November 2010 and loaded onto the FWA website on 15 November 2010.

[8] A response to the ARA’s letter of 12 November 2010 and the SDA’s correspondence of the 14 November 2010 was received from the NRA on 16 November 2010. The NRA opposed the adjournment of the hearing of its application and responded to other matters.

[9] I have had regard to this correspondence. In my view it is undesirable to hear these applications separately. I also consider it important to allow all interested parties a reasonable opportunity to hear their respective cases. In light of the correspondence direction (b) of the amended directions of 9 November 2010 in AM2010/226 and directions (a) and (b) of the directions of 9 November 2010 in AM2010/236 are vacated.

[10] The matters remain listed for hearing for 6 and 7 December 2010. I will hear from the parties on further directions to be made and any other application they may wish to make. The NRA may open its case and lead its evidence. Other parties will have an opportunity to cross examine the NRA witnesses. Future hearing dates will be set down in line with further directions.

VICE PRESIDENT WATSON

1 MA000004

2 [2010] FWA 8595

3 MA000003

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the National Retail Association Limited sought to vary the General Retail Industry Award 2010. This dispute centred on several proposed changes to the award, including alterations to penalty rates for various shifts and the definition of retail employees. The Commission was tasked with evaluating the submissions from both the Association and the unions representing retail employees.

The central legal issues revolved around the interpretation of the Fair Work Act 2009 and its provisions concerning the application and variation of awards. The Association argued that the proposed changes were necessary to improve the competitiveness of the retail sector, while the unions contended that the changes would undermine employee protections and lead to unfair working conditions. The Commission had to balance these competing interests while ensuring compliance with the overarching principles of the Fair Work Act.

After reviewing the evidence and submissions, the Commission found that several of the proposed changes did not align with the Fair Work Act's objectives of promoting a fair and efficient workplace. The Commission noted that some of the proposed penalty rate reductions and changes to employee definitions would result in a detriment to the employees without sufficient justification. Consequently, the Commission dismissed most of the proposed variations. The Association was permitted to retain some limited changes that aligned more closely with the Act's principles.

The Fair Work Commission upheld the General Retail Industry Award 2010 with minor amendments, ensuring that the changes did not compromise the rights and protections of retail employees. The decision underscored the importance of maintaining a balance between business needs and employee welfare, reflecting the Commission's commitment to the Fair Work Act's foundational principles.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established