Variation of General Retail Industry Award 2020 on Commission’s own motion

[2023] FWC 1959

[2023] FWC 1959

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 160—Variation of modern award to remove ambiguity or uncertainty or correct error

Variation of General Retail Industry Award 2020 on Commission’s own motion

(AM2023/19)

JUSTICE HATCHER, PRESIDENT SYDNEY, 8 AUGUST 2023

Variation on the Commission’s own initiative pursuant to s 160 to correct clause 4.1(b) of the General Retail Industry Award 2020.

1. This matter has been created on the Commission’s own initiative to correct an error in clause 4.1(b) of the General Retail Industry Award 2020 (Retail Award) pursuant to s 160 of the Fair Work Act 2009 (Act).

1. Clause 4.1 concerns the coverage of the Retail Award and provides the following:

4.1      This industry award covers, to the exclusion of any other modern award:

(a)       employers in the general retail industry throughout Australia; and

(b)employees (with a classification defined in defined in Schedule A—Classification Definitions) of employers mentioned in clause 4.1(a).

1. Clause 4.1(b) refers to employees “with” instead of “within” a classification defined in Schedule A and unnecessarily repeats the words “defined in”. Clause 4.1(b) has appeared in its current form since the award was varied extensively as part of the 4 yearly review of modern awards on 10 September 2020.[1]

1. Section 160 of the Act allows the Commission to make a determination varying a modern award to remove ambiguity or uncertainty or correct an error. Section 160(2)(a) provides that the Commission may make such a determination on its own initiative. The principles applicable to the interpretation and application of s 160 are well established.[2] In order to establish that there is an error it is necessary to show that some sort of mistake occurred, in that a provision of the award was made in a form which did not reflect the tribunal’s intention.[3]

1. It is my view that the issues in clause 4.1(b) identified above clearly constitute an error for the purpose of s 160 and should be corrected.

1. A determination replacing the words “with a classification defined in defined in Schedule A” in clause 4.1(b) with the words “within a classification defined in Schedule A” will be issued concurrently with this decision.

PRESIDENT

[1] PR722492.

[2] Property Sales Association of Queensland, Union of Employees re Real Estate Industry Award 2010 [2012] FWA 10134 at [14].

[3] 4 yearly review of modern awards - Vehicle Manufacturing, Repair Services and Retail Award 2010 [2016] FWCFB 4418 at [73].

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