Shop, Distributive and Allied Employees Association v National Retail Association

[2011] FCA 1167

FEDERAL COURT OF AUSTRALIA

Shop, Distributive and Allied Employees Association v National Retail Association [2011] FCA 1167

Citation:

Shop, Distributive and Allied Employees Association v National Retail Association [2011] FCA 1167

Parties:

SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION v NATIONAL RETAIL ASSOCIATION and FAIR WORK AUSTRALIA

File number:

VID 1064 of 2011

Judge:

TRACEY J

Date of judgment:

6 October 2011

Legislation:

General Retail Industry Award 2010

Cases cited:

Australian Industrial Relations Commission v Construction, Forestry, Mining and Energy Union; Ex parte Hail Creek Coal Pty Ltd [2003] FCAFC 322 cited

Re Australian Nursing Federation; Ex parte State of Victoria (1993) 112 ALR 177 cited

Date of hearing:

6 October 2011

Place:

Melbourne

Division:

FAIR WORK DIVISION

Category:

No catchwords

Number of paragraphs:

9

Counsel for the Applicant:

Mr W L Friend SC

Solicitor for the Applicant:

A J Macken & Co

Counsel for the First Respondent:

Ms C Symons

Solicitor for the First Respondent:

National Retail Association

Counsel for the Second Respondent: The Second Respondent filed a submitting appearance

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION	VID 1064 of 2011

BETWEEN:

SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION
Applicant

AND:

NATIONAL RETAIL ASSOCIATION
First Respondent

FAIR WORK AUSTRALIA
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	6 OCTOBER 2011
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application for a stay of the operation of the order of Vice President Watson made on 23 September 2011 be refused.

2.Costs of the application be reserved.

3.Liberty to apply.

AND THE COURT DIRECTS THAT:

4.The Applicant’s application be set down for hearing on a date to be fixed.

5.The Applicant file and serve its Outline of Submissions 14 days prior to the date of the hearing.

6.The First Respondent and any other party file and serve their Outline of Submissions 7 days prior to the date of the hearing.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION	VID 1064 of 2011

BETWEEN:

SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION
Applicant

AND:

NATIONAL RETAIL ASSOCIATION
First Respondent

FAIR WORK AUSTRALIA
Second Respondent

JUDGE:	TRACEY J
DATE:	6 OCTOBER 2011
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Since its inception, the General Retail Industry Award 2010 (“the Award”) has contained a provision which limits employment of casual employees to periods in excess of three hours. 

2. Earlier this year an application was made to Fair Work Australia to vary that provision so as to permit the engagement of full-time secondary school students for periods of a minimum of one and a half hours.  As a result they would be able to engage in casual employment in the retail industry after school.  That application, although not in the terms in which it was sought, was granted by Vice President Watson on 20 June 2011.

3. His Honour’s determination was appealed to a Full Bench of Fair Work Australia.  On 14 September 2011 that Full Bench dismissed the appeal.  On 23 September 2011, Vice President Watson varied the terms of the Award to give effect to his draft determination.  The variation took effect on 1 October 2011.  It has, therefore, been in operation for five days.

4. On 29 September 2011, the applicant filed an originating application in this Court seeking judicial review of the decisions of Vice President Watson and the Full Bench.  The originating application also sought interlocutory relief staying the operation of the variation ordered by Vice President Watson until the hearing and determination of the judicial review application. 

5. The respondent opposes the granting of a stay. 

6. I am prepared to accept, for the purposes of the interlocutory application, that the applicant has an arguable case for the relief which it seeks.  A stay will, however, only be granted in circumstances in which an applicant is able to demonstrate exceptional circumstances:  see:  Re Australian Nursing Federation; Ex parte State of Victoria (1993) 112 ALR 177 at 184-5 (per McHugh J); Australian Industrial Relations Commission v Construction, Forestry, Mining and Energy Union; Ex parte Hail Creek Coal Pty Ltd [2003] FCAFC 322 at [2].

7. The applicant must show some particular detriment or untoward result if the order were allowed to continue in operation whilst the judicial review application is pending. 

8. There is no evidence before the Court which suggests that any exceptional circumstances exist in the present case.  Accordingly, the application for a stay must be refused.

9. I will order that the application for a stay of the operation of the order of Vice President Watson made on 23 September 2011 be refused and that the costs of the application be reserved.  I will give directions with a view to readying the proceeding for an early hearing.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated:       6 October 2011