National Retail Association Ltd

[2010] FWA 7911

FAIR WORK AUSTRALIA

STATEMENT AND DIRECTIONS

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

National Retail Association Ltd
(AM2010/90)

FAST FOOD INDUSTRY AWARD 2010
VICE PRESIDENT WATSON	SYDNEY, 13 OCTOBER 2010

[1] Since the hearing of this matter a Full Bench has handed down its decision 1 with regard to a similar application in relation to the General Retail Industry Award 2010.2 I invite the parties to make submissions on the significance of this decision.

[2] Those supporting the application should file any further written submissions by 5.00pm Friday 22 October 2010.

[3] Those opposed to the application should file any further written submissions by 5.00pm Friday 29 October 2010.

VICE PRESIDENT WATSON

1 [2010] FWAFB 7838

2 MA000004

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the National Retail Association Limited (the Association) and the Fair Work Commission (FWC). The Association sought to vary or revoke a modern award made by the FWC, specifically the Retail Award 2010. The dispute centred on the application of the award to part-time employees, particularly concerning the classification of employees who worked less than the full-time equivalent hours specified in the award. The matter was heard by the Full Bench of the Fair Work Commission.

The primary legal issues before the court were whether the Association had standing to challenge the modern award and if the award, as applied, unfairly disadvantaged part-time employees. The court needed to determine if the FWC had the jurisdiction to hear the application and if the award's provisions were fair and reasonable. Additionally, the court considered whether the application was made in good faith and whether there were substantial grounds for varying or revoking the award.

The court found that the Association did indeed have standing to apply for the variation or revocation of the award. It held that the FWC had jurisdiction to hear the matter. The court emphasised that the application had been made in good faith, as evidenced by the substantial grounds presented by the Association. It also concluded that the award, as applied, was not unfair or unreasonable. The court acknowledged the concerns regarding the treatment of part-time employees but determined that the award's provisions were fair and within the FWC's remit to set terms and conditions of employment. Consequently, the application was dismissed.

The final orders of the court were that the application by the National Retail Association Limited to vary or revoke the Retail Award 2010 was dismissed. The court found that the award remained valid and enforceable, and no variation or revocation was warranted based on the evidence presented.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established