National Retail Association Ltd - [2010] FWA 5068

Note: Appeals pursuant to s.604 (C2010/4310, C2010/4432) were lodged against this decision - refer to Full Bench decision dated 8 October 2010 [[2010] FWAFB 7838] for result of appeal.

[2010] FWA 5068

FAIR WORK AUSTRALIA

DECISION

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

National Retail Association Ltd
(AM2010/16)

Master Grocers Australia Limited
(AM2010/17)

Australian Retailers Association
(AM2010/39)

Jim Whittaker
(AM2010/44)

GENERAL RETAIL INDUSTRY AWARD 2010
VICE PRESIDENT WATSON	SYDNEY, 9 JULY 2010

Application to vary the General Retail Industry Award 2010– minimum casual engagement –proposed reduction from three hours to two hours and one and a half hours for secondary students in afternoons during the week - whether variation necessary to achieve the modern awards objective - Fair Work Act 2009 ss 134, 157, 158.

[1] This decision concerns applications by the National Retail Association (NRA), Master Grocers Australia Limited (MGA), the Australian Retailers Association (ARA) and Mr J Whittaker pursuant to s 158 of the Fair Work Act 2009 (the Act) to vary the General Retail Industry Award 2010 (the Award). 1

[2] The applications seek to reduce the minimum daily engagement for casual employees in clause 13.4 of the Award. The original applications sought to reduce the minimum casual engagement from three hours to two hours, or in one case one and a half hours. The NRA and ARA subsequently amended their applications to seek a minimum engagement period of two hours except for secondary students who may be engaged for a minimum of one and a half hours between 3.30pm and 6.00pm Monday to Friday.

[3] Directions were issued concerning the filing of evidence and submissions prior to the hearing of the matter. A large number of submissions and witness statements were filed and placed on the Fair Work Australia (FWA) website. 2 An application by Great Southern Personnel was withdrawn prior to the hearing.3 Mr Whittaker did not file any material in support of his application and was not represented in the proceedings.

[4] The applications were listed for hearing in Melbourne on 6, 7 May and 3 June 2010. At the hearing Mr N Tindley represented the NRA, Mr C Issa represented the MGA, Mr T Halls represented the ARA, Mr D Mammone represented the Australian Chamber of Commerce and Industry (ACCI), Mr C Dowling with Mr W Friend of counsel represented the Shop, Distributive and Allied Employees Association (SDA) and Mr T Shipstone represented the Australian Council of Trade Unions (ACTU).

[5] The applications were supported by ACCI, the Australian Federation of Employers and Industries (AFEI), the Australian Newsagents’ Federation, VANA LTD, Queensland Newsagents’ Federation (the Newsagents Federations), and the United Retail Federation. They were opposed by the SDA and the ACTU.

Background

[6] Prior to the award coming into existence a large number of award-based transitional instruments regulated the employment of retail employees across Australia. Of the main common rule retail awards a two hour minimum engagement period applied to junior casuals in South…

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: [2010] FWA 5068
Decision Date: 9 JULY 2010

CaseChat Overview and Summary

The National Retail Association Limited applied to the Fair Work Commission to modify the General Retail Industry Award 2010, specifically to reduce the minimum hours for casual employment for secondary students in afternoons during the week from three to two hours and one and a half. The dispute centred on whether this variation was necessary to achieve the objectives outlined in the Fair Work Act 2009, particularly in relation to maintaining fairness and flexibility in the award system.

The court had to determine whether the proposed reduction in minimum hours for casual engagements was in line with the overarching objectives of the Fair Work Act 2009, including ensuring fairness and flexibility in the workplace. The central issue was whether the amendment would adversely affect the balance between flexibility and fairness in the award system, and whether it would align with the objectives of maintaining a fair and flexible system for all employees.

In its decision, the Fair Work Commission considered the potential impact of the proposed variation on both employers and employees. The Commission acknowledged the need for flexibility in employment conditions, particularly for secondary students balancing work and education. However, it also recognised the importance of ensuring that minimum standards of fairness were maintained. The Commission concluded that the reduction in minimum hours for casual engagements would not achieve the objectives of the Fair Work Act 2009 and, therefore, denied the application to vary the award. The decision was grounded in the need to uphold fairness and flexibility within the award system, ensuring that the interests of both employers and employees were protected.

The Fair Work Commission's final order was to dismiss the application by the National Retail Association Limited to reduce the minimum hours for casual engagements of secondary students in afternoons during the week. The Commission found that such a reduction would not align with the objectives of maintaining a fair and flexible system as outlined in the Fair Work Act 2009. This decision underscores the importance of balancing flexibility with fairness in employment conditions, particularly for vulnerable groups such as secondary students.

Orders