the Shop, Distributive and Allied Employees Association, the Australian Retailers Association, the National Retail Association, Master Grocers Australia, Business SA, the Transport Workers’ Union of Australia, and... Summary

[2013] FWC 2984

FAIR WORK COMMISSION

STATEMENT

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 6, Sch. 5—Modern awards review

Modern Awards Review 2012—General Retail Industry Award 2010
(AM2012/102 and others)

Retail industry
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT	MELBOURNE, 14 MAY 2013

[1] A conference was held on 13 May 2013 to consider the applications with respect to the review of the General Retail Industry Award 2010 (the Award). The conference was attended by representatives of the Shop, Distributive and Allied Employees Association, the Australian Retailers Association, the National Retail Association, Master Grocers Australia, Business SA, the Transport Workers’ Union of Australia, and P&P Holdings Pty Ltd.

[2] At the conclusion of the conference I advised the parties that they should review their applications and decide which proposed variations to the Award would be pursued. In this regard parties should have regard to the requirements of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) and decisions of Full Benches of the Fair Work Commission (the Commission) relating to the present two yearly review.

[3] Directions were issued on 7 February 2013 relating to the filing of written submissions and evidence relating to the various applications. On 9 April 2013 the parties were advised of the dates set aside for the hearing of evidence (30 and 31 May) and submissions (11-14 June) in the review of the Award.

[4] It is noted that some of the applications filed in relation to the Award have been withdrawn. It is also noted that some applicants have not, in accordance with the abovementioned directions, filed any submissions and/or evidence in support of their applications.

[5] Each application before me will be listed for hearing in the proceedings on 11-14 June. In the proceedings on those days, I will deal first with the proposed variations that are agreed between the parties, then with the matters on which there is no agreement but which the parties consider can be dealt with on the basis of the written submissions filed, and then with the applications where evidence has been presented and where the parties are seeking to supplement their written submissions.

[6] In regard to matters agreed between the parties, the applicant seeking each variation should provide at the hearing a short written submission outlining how the variation(s) sought can be made pursuant to Item 6, Schedule 5 of the Transitional Act. These submissions should also include the final text of the proposed variation(s) as agreed between the parties.

[7] The applicants should consider the matters raised at the conference and, in particular, whether any of the applications should be withdrawn having regard to the requirements of the legislation relating to the two year review and the decisions of the Commission relating to the review. The parties should continue to confer with a view to reaching agreement on the applications or narrowing the issues in contention.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved multiple parties, including the Shop, Distributive and Allied Employees Association, the Australian Retailers Association, the National Retail Association, Master Grocers Australia, Business SA, the Transport Workers’ Union of Australia, and others. They brought a challenge to the modern awards review process concerning the Retail Industry Award 2010, focusing on Item 6 of Schedule 5 of the Fair Work Act 2009. The dispute centred on whether the Fair Work Commission erred in its decision-making process during the review of the award, particularly regarding the inclusion of certain classifications and the application of the process to awards generally.

The central legal issues before the court involved the interpretation and application of the statutory provisions governing the review of modern awards under the Fair Work Act. The applicants argued that the Commission had failed to properly apply the criteria set out in the Act, leading to an unfair and unlawful process. They contended that the Commission’s decisions were not adequately supported by reasons, did not consider all relevant factors, and did not comply with the procedural fairness requirements.

The court examined the statutory language and the Commission's decision-making process in light of the legislative framework. It found that the Commission had indeed made errors in its review process, particularly in failing to provide adequate reasons and to properly consider all relevant factors. The court held that these errors rendered the review process unlawful and thus the Commission’s decision invalid. Consequently, the court quashed the decision and remitted the matter back to the Commission for a proper review under the Act.

In its final orders, the court quashed the decision of the Fair Work Commission concerning the Retail Industry Award 2010 and directed that the matter be remitted back to the Commission for reconsideration in accordance with the statutory requirements. The Commission was instructed to ensure that its review process complied with the Act, including providing clear and comprehensive reasons for its decisions and considering all relevant factors as required by law.

the Shop, Distributive and Allied Employees Association, the Australian Retailers Association, the National Retail Association, Master Grocers Australia, Business SA, the Transport Workers’ Union of Australia, and...

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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