Note: Judicial review of this decision 11 May 2012 [2012] FCA 480.
[2011] FWAFB 6251 |
FAIR WORK AUSTRALIA |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
VICE PRESIDENT LAWLER |
|
Appeal against decision [[2011] FWA 3777] of Vice President Watson at Sydney on 20 June 2011 in matter number AM2010/226.
[1] This is an application by the Shop, Distributive and Allied Employees Association (SDA) for permission to appeal and, if permission is granted, an appeal against a decision of Vice President Watson 1 to allow an application by the National Retail Association Ltd (NRA) to vary the General Retail Industry Award 2010 (the Retail Award), a modern award, to create a qualified exemption to the minimum engagement period for casual employees provided for in clause 13.4 of the Retail Award. The Australian Retailers Association (ARA), the Australian Chamber of Commerce and Industry and the State of Victoria intervened in the appeal.
[2] The Vice President has yet to make a formal determination varying the Retail Award. His Honour published a decision indicating that he proposed to vary the Retail Award (albeit in a more limited way than that sought by the NRA), published a draft determination and invited submissions from the parties on the final form of the determination. The SDA lodged its Notice of Appeal before that process had been completed and a stay was granted on 29 June 2011. 2
[3] It may be noted that the Vice President was not prepared to accept the variation as proposed by the NRA and instead has proposed a more confined variation that is clearly crafted in deference to some of the arguments of the SDA.
[4] We consider that it is also appropriate to note that the matter before the Vice President followed an earlier application to vary the Retail Award by employer interests, including the NRA and ARA, which sought a general reduction in the minimum engagement provision within the award. The Vice President refused that application 3 and that decision was upheld on appeal by a Full Bench.4 In so doing the Full Bench indicated as follows:
“[29] Before concluding we return to the submission made by the ARA, which we referred to earlier, that we should make provision for student casuals to be engaged for less than three hours in specified circumstances. Although it is not necessary to set it out, it should be recorded that the ARA tendered a detailed proposal. No such proposal was ever put to the Vice President. For that reason it would not be appropriate to entertain it in an appeal from the Vice President’s decision, which we have found to be free from error. On the other hand, we cannot see any barrier to the ARA, or any other interested party, making an application to vary the award to deal specifically with the engagement of student casuals. The fate of any such application would of course depend upon the tribunal’s assessment, in the relevant statutory context, of the material and submissions advanced for and against it.”
[5] Pursuant to s.604 of the Fair Work Act 2009 (FW Act) an appeal against a decision by a single member of Fair Work Australia lies only with the permission of Fair Work Australia. Permission to appeal must be granted if the Full Bench considers that it is in the public interest to do so. Otherwise, permission to appeal is discretionary and falls to be determined on the basis of the usual considerations governing the discretion to grant leave or permission to appeal. If permission to appeal is granted the appeal proceeds as a rehearing. However, the Full Bench is not permitted to exercise its powers under s.607(3) of the FW Act unless error is demonstrated. 5 Because the decision at first instance was a discretionary decision, the error that must be established is an error within the well known principles in House v The King.6
[6] We consider that there will often be a public interest in granting permission to appeal against a decision of a single member of Fair Work Australia to vary a modern award. This is because a modern award has general application to national system employers and employees and a decision to vary a modern award will almost invariably affect the interests of a large number of employers and employees who were not party to the proceedings at first instance. We consider that there is a public interest in granting permission to appeal in this matter and do so.
[7] Clause 13 of the Retail Award provides:
“13. Casual employees
13.1 A casual employee is an employee engaged as such.
13.2 A casual employee will be paid both the hourly rate payable to a full-time employee and an additional 25% of the ordinary hourly rate for a full-time employee. A casual employee is not entitled to the additional penalty payment for evening work and Saturday work in clause 29.4 but must be paid an additional 10% for work performed on a Saturday between 7.00 am and 6.00 pm.
13.3 Casual employees will be paid at the termination of each engagement or weekly or fortnightly in accordance with pay arrangements for full-time and part-time employees.
13.4 The minimum daily engagement of a casual is three hours.”
[8] The application by the NRA sought a reduction in the minimum casual engagement period for secondary school students on school days. The Vice President decided that the Retail Award should be varied but in a manner that was more confined than the variation sought by the NRA. Based upon the draft order, the variation proposed by the Vice President would see clause 13.4 read:
“13.4 The minimum daily engagement of a casual is three hours provided that the minimum engagement period for an employee will be one hour and thirty minutes if all of the following circumstances apply:
a) the employee is a full time secondary school student; and
b) the employee is engaged to work between the hours of 3.00 pm and 6.30 pm on a day which they are required to attend school; and
c) the employee agrees to work, and a parent or guardian of the employee agrees to allow the employee to work, a shorter period than 3 hours; and
d) employment for a longer period than the period of the engagement is not possible either because of the operational requirements of the employer or the unavailability of the employee.”
[9] The Vice President’s summary of the evidence included the following:
“[18] On the evidence before me I am satisfied that retail establishments across Australia have a variety of opening hours and that many, especially in regional areas, do not open beyond 5.30pm or 6.00pm on week days. I am also satisfied that many school students currently in employment find that the existing three hour minimum period of engagement is important to their decision to undertake part time employment after school because the cost and inconvenience of attending work is compensated for by payment of at least the minimum period of engagement. A shorter period may mean that employment is no longer viable in their circumstances.
[19] I am satisfied that if shorter periods of engagement are available then employers may be more prepared to hire school students after school. It is difficult to assess the extent of this factor or the circumstances in which this may arise as the evidence before me does not deal with these issues. It appears that it may arise where opening hours are limited and the existing minimum engagement period precludes employment for the students during their period of availability. It may also arise where longer opening hours operate but there is a desire to engage junior employees to work for short periods to undertake specific tasks or assist at busy periods. In other words it is not clear whether future employment provided if the application is granted would be limited to circumstances where employment of school students for three hours is not currently possible or would be utilised in substitution for other existing arrangements. It is therefore not clear what impact may flow to other employees from any such change.
[20] The retail industry is often the source of an employee’s first job and can therefore play an important role in the transition from education to work - even though the employee ultimately pursues a career in other industries. The evidence establishes that there has been a growth in the proportion of secondary students undertaking part-time employment over the past 30 years and that a substantial proportion of these students are employed in the retail industry. The proportion of students in employment is currently approximately 37%, almost half of whom are employed in the retail sector. The proportion of school children in employment is higher than in most OECD countries. Youth unemployment in Australia is also relatively high - often more than double the general rate of unemployment. The youth unemployment rate has been in excess of 15% for much of 2010-2011.
[21] The House of Representatives Standing Committee Report records that there is a general consensus that young people’s participation in some form of work while at school holds an inherent value. The report states that combining school and work can:
[22] The report also acknowledges that the extent of work should be limited and an appropriate balance struck between work and educational commitments. At some point as work demands increase work can start to become an impediment to school performance.
[23] In a response to the Victorian discussion paper on youth transition system, the Brotherhood of St Laurence expressed the view that more attention should be paid to the needs of students who undertake paid work and study. It said:
‘Part-time or casual work can have considerable benefits for students, including independence, confidence and work skills, and new networks; and these may assist them in getting new work in the future. However students in rural areas, from low socio-economic status communities or from refugee or migrant backgrounds may be less able to access part-time jobs. For those students who would benefit from part-time work while studying full time, but who lack access to such opportunities, processes are required through community, business and schools partnerships to enable the development of safe, meaningful employment opportunities that benefit young people.’ ”
[footnotes omitted]
[10] It is desirable to set out the Vice President’s consideration of whether the variation is necessary to achieve the modern awards objective:
“Is the Variation Necessary to Achieve the Modern Awards Objective?
[37] It is necessary to consider the evidence and circumstances of this application against the statutory test set out above. This application is quite different to the application subject to earlier proceedings as it is confined to circumstances after school on weekdays for full time secondary school students. It does not seek a general change to the minimum engagement period for casuals.
[38] The retail sector is the most important industry for school students because it provides a large proportion of employment opportunities for this class of employees. It is clear that the employment opportunities in the industry provide significant benefits for the employees, not only in an immediate sense, but also by equipping them with skills and networks to assist in obtaining, and succeeding in, employment in the future.
[39] While the level of employment of full time students in Australia is high by international comparisons, there is no reason to suggest that it should not be higher. Indeed there is some suggestion in the evidence that the current employment opportunities are gained more by students from stable and well off backgrounds than other groups in the community. Members of other groups, such as those from low socio-economic, regional, migrant or refugee backgrounds are likely to benefit far more from employment opportunities while completing full time education.
[40] The evidence suggests that school students who work at present value the current three hour minimum engagement period and may not find employment viable if this engagement period were reduced. There is a long history of minimum engagement periods for part time and casual employees providing protection for employees from employer expectations of working short periods where the cost and inconvenience of attending the workplace outweighs the benefits received from the engagement. The minimum engagement period does not preclude shorter periods of work - provided payment for the minimum period is made.
[41] Hence different groups of persons are likely to be affected in different ways if this application were granted. One group, comprising existing employees and those in similar circumstances, may have their employment rendered unviable and may effectively be deprived of the opportunity to work if a reduced period of engagement is able to be offered to them. Another group, those who are not able to secure jobs at the moment, may be able to obtain valuable employment if more opportunities become available.
[42] Employers, by virtue of the application by one employer association in the retail industry, and the support of ACCI, seek the opportunity to engage students for shorter periods than three hours. No employer gave evidence as to their reasons for wanting this change, and the reasons and circumstances which may arise if the application is granted must therefore involve some speculation.
[43] The support for the application may be for reasons of cost savings where the work of other employees would be substituted with work of cheaper school students. If this were the case other employees, particularly adult and University students who work part-time may be adversely affected by the proposed change. Existing school students who are engaged for three hours or more may have their periods of employment reduced to save on labour costs. If the change opens up employment opportunities for work over and above the work currently performed by other employees then both the employer and students who obtain employment would be better off. The NRA has not established that this would be the main effect of granting the application.
[44] A variation to the award at this time can only be made if it is established that the variation is necessary to achieve the modern awards objective. The objective contains numerous components, some of which relate to employers and the desirability of flexible work practices and some relate more to employees such as the desirability of promoting social inclusion through greater workforce participation.
[45] The employer evidence did not establish how the change would impact on retail operations and why the change would benefit businesses in the industry. The employer evidentiary case was very brief and indirect. It did not deal with the issues relevant to employer flexibility in any meaningful manner. Nor did it attempt to address the impact of the proposed change on school students and other existing employees. I do not therefore consider that a case has been made out based on employers’ desire for more flexible engagement practices that the change sought in the application is necessary to achieve the relevant parts of the modern awards objective.
[46] The issue of promoting social inclusion by increased workforce participation addressed by the Victorian Minister and the employers is a significant matter in the retail industry because of the importance of this issue to youth employment generally. However I am also of the view that granting the application in its present form may create more opportunities for some school students while disadvantaging others. The disadvantage to some may be so great as to render employment in the industry impractical.
[47] Most of the circumstances and arguments advanced by the NRA in this matter related to circumstances where either employment cannot be offered to school students because of the existing three hour minimum engagement period or where students simply cannot be available for a three hour engagement that employers may be prepared to make available. However the variation to the award sought by the NRA seeks a reduction in the minimum engagement period in wider circumstances where three hour engagements may still be possible. These wider circumstances potentially impinge on the viability of existing employment practices that apply to school students. In short, the increased opportunities provided to some school students may result in a detriment to other school students and the proposed variation may not give rise to a net increase in social inclusion or employment opportunities.
[48] I consider that a modified variation to the Award should be made which confines the proposed exception to the three hour minimum engagement period to circumstances where a longer period of employment is not possible. This will ensure that where a longer period is possible the three hour minimum will continue to apply and school students will continue to have the benefit of such an engagement. Where only a shorter period is possible, then a shorter period of engagement can be utilised and employment that would not otherwise be available may thereby become available. Those who can benefit from such employment will be able to take up the anticipated enhanced employment opportunities. Those who do may well be students in different circumstances to many of those who are currently engaged in employment after school and require the benefits of a three hour engagement. Given the circumstances in which the modified clause will operate I consider that the benefits of promoting social inclusion arising from the variation mean that the change is necessary to achieve the modern awards objective.
[49] I envisage that my intention could be achieved by way of additional conditions on the operation of the exception to the three hour minimum. I publish a draft determination together with this decision. Those wishing to comment on the draft may do so in writing within seven days of the handing down of this decision. I will finalise the variation after considering the additional submissions.”
[11] The SDA’s grounds of appeal can be distilled to the following:
(a) The Vice President acted on a wrong principle. In particular, he misunderstood or failed to properly apply the requirement in s.157(1) and (2)(b) that “the variation outside the system of 4 yearly reviews of modern awards is necessary to achieve the modern awards objective”.
(b) The Vice President failed to give adequate reasons.
(c) There was no evidence for certain findings made by the Vice President such that his Honour did not have a proper evidentiary basis for his decision.
(d) The determination proposed by the Vice President (and, indeed, any variation creating a different minimum engagement period for school children) is discriminatory and therefore prohibited by s.153 of the FW Act.
[12] Section 157 of the FW Act relevantly provides:
“157 FWA may vary etc. modern awards if necessary to achieve modern awards objective
(1) FWA may:
(a) make a determination varying a modern award, otherwise than to vary modern award minimum wages; or
(b) make a modern award; or
(c) make a determination revoking a modern award;
if FWA is satisfied that making the determination or modern award outside the system of 4 yearly reviews of modern awards is necessary to achieve the modern awards objective.
...
(2) FWA may make a determination varying modern award minimum wages if FWA is satisfied that:
...
(b) making the determination outside the system of annual wage reviews and the system of 4 yearly reviews of modern awards is necessary to achieve the modern awards objective.
Note: As FWA is varying modern award minimum wages, the minimum wages objective also applies (see section 284).”
[underline emphasis added]
[13] The modern awards objective is defined in s.134 of the FW Act:
“134 The modern awards objective
What is the modern awards objective?
(1) FWA must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce participation; and
(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and
(e) the principle of equal remuneration for work of equal or comparable value; and
(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and
(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.
This is the modern awards objective.”
[underline emphasis added]
Wrong Principle?
[14] The SDA submits that the Vice President
(i) failed to consider whether the variation was “necessary” and, instead, only found that a variation was “desirable”;
(ii) isolated the concept of social inclusion and did not consider the modern awards objective as a whole; and
(iii) adopted an incorrect view of the content of the social inclusion consideration in the modern awards objective.
[15] As to (i), we reject the submission that the Vice President failed to consider whether the variation was “necessary to achieve the modern awards objective”. The heading that precedes paragraph [37] of the decision, the opening words of that paragraph and the ultimate finding in the last sentence of paragraph [48] demonstrate that the Vice President was focussed on the correct statutory test.
[16] It is also evident from the decision and the history of the matter, that the Vice President was applying the approach taken to s.134 of the FW Act in the earlier general application, as was endorsed by the Full Bench on appeal.
[17] As to (ii), it is true that the relevant portion of the Vice President’s decision places a particular focus on the social inclusion criterion in s.134(1)(c). However, this was reflective of the arguments of the parties before the Vice President where the social inclusion criterion was the focus of submissions on whether the variation was necessary to achieve the modern awards objective. That focus does not mean that the Vice President did not consider the modern awards objective as a whole. Reading the decision as a whole, we are not persuaded that the Vice President erred in the manner submitted.
[18] We observe that the modern awards objective is ultimately concerned with the existence of modern awards which, together with the National Employment Standards, provide “a fair and relevant minimum safety net of terms and conditions”. While it is true that in any case that requires a consideration of the modern awards objective Fair Work Australia must take account of all of the matters specified in paragraphs (a) to (h) of s.134(1), this does not mean that each of those factors will be applicable or relevant to a particular application or that a single criterion in s.134(1) can never be a sufficient basis for a variation to a modern award as necessary to achieve the modern awards objective.
[19] At this point, it should also be observed that counsel for the SDA placed emphasis on findings in paragraphs [19] and [41] of the decision by reference to circumstances that “may” exist. However, reading the decision as a whole, it is tolerably clear that the Vice President was satisfied that if shorter periods of minimum engagement were available for secondary school students then this would increase employment opportunities for secondary school students who wish to obtain casual employment after school but who are presently unable to do so, albeit that the Vice President was unable to quantify this.
[20] As to (iii), we are not persuaded that the Vice President adopted an incorrect view of the content of the social inclusion criterion in the modern awards objective. Again, reading the decision as a whole we are not persuaded that the Vice President proceeded on the basis that if social inclusion is promoted by the variation then the variation should be made. Again, it is tolerably clear that the Vice President was satisfied that some secondary school students, particularly from low socio-economic, regional, migrant or refugee backgrounds 7 presently suffer social exclusion through an inability to obtain employment after school and that a variation that enabled them to obtain work and earn the money necessary to participate more fully in society would promote social inclusion. We see no error in that position.
[21] There was evidence and submissions from the SDA in relation to the countervailing negative effects for other employees if the variation as proposed by the NRA was made. The variation proposed by the Vice President is more limited than the variation sought by the NRA. The restrictions introduced by the Vice President in his proposed variation are reflective of a concern to limit the potential for those countervailing negative effects.
Adequacy of Reasons
[22] This ground is related to the previous ground. The SDA submitted that if the Vice President did not act on a wrong principle then his Honour did not give adequate reasons for how the proposed variation was “necessary to achieve the modern awards objective”. The principles governing the adequacy or reasons are well known and need not be restated here. 8 We have set out key portions of the Vice President’s decision. We consider that the decision of the Vice President adequately discloses his reasoning process in rejecting the variation sought by the NRA but approving an alternative variation which was tightly constrained to address the matter that led him to refuse the broader provision. An understanding of the historical context reinforces our conclusion on this aspect of the appeal.
No evidence?
[23] The SDA submitted that there was no evidence for particular findings made by the Vice President. That submission must be rejected. The NRA and the State of Victoria in their submissions identified evidence that it was open to the Vice President to act on and which was capable of supporting the impugned findings. The evidence may fairly be described as thin. Moreover, the survey evidence relied upon by the NRA was the subject of telling criticism in expert evidence called by the SDA to the point where it could not be regarded as more than “a series of notes drawn from conversations with members”. The Vice President acknowledged the limitations of that evidence. Nevertheless, even as characterised by the SDA’s expert, it remained evidence on which the Vice President was entitled to place some weight.
[24] In this context we note that it is inherently difficult to demonstrate by direct evidence the employment effects of a proposed award variation such as that being considered by the Vice President, let alone quantify those effects. It should also be remembered that the tribunal is not bound by the rules of evidence and that the Vice President was entitled to place weight on material such as the response of the Brotherhood of St Laurence referred to in paragraph [23] of the Vice President’s decision.
[25] The Vice President also had before him some of the material directly touching upon the matter that was tendered in the earlier general application, and was considered by the earlier Full Bench.
[26] A “no evidence” ground is not made out if there is some evidence on which the impugned finding could be made. It matters not that another member may not have been persuaded by such evidence.
Whether variation is discriminatory?
[27] Section 153 of the FW Act provides:
“153 Terms that are discriminatory
Discriminatory terms must not be included
(1) A modern award must not include terms that discriminate against an employee because of, or for reasons including, the employee’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Certain terms are not discriminatory
(2) A term of a modern award does not discriminate against an employee:
(a) if the reason for the discrimination is the inherent requirements of the particular position held by the employee; or
(b) merely because it discriminates, in relation to employment of the employee as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3) A term of a modern award does not discriminate against an employee merely because it provides for minimum wages for:
(a) all junior employees, or a class of junior employees; or
(b) all employees with a disability, or a class of employees with a disability; or
(c) all employees to whom training arrangements apply, or a class of employees to whom training arrangements apply.”
[28] The SDA submits that the proposed variation, and any variation that creates a different standard for school students, discriminates on the basis of age because school students are overwhelmingly young people. That discrimination is arguably indirect discrimination because, in theory at least, a person of any age can be a secondary school student.
[29] The word “discrimination” is not defined in the FW Act and has its ordinary meaning. The law recognises that discrimination may be direct or indirect. In Waters v Public Transport Corporation 9 (Waters), Dawson and Toohey JJ summarised the distinction between direct and indirect discrimination as follows:
“A distinction is often drawn between two forms of discrimination, namely ‘direct’ or ‘disparate treatment’ discrimination and ‘indirect’ or ‘adverse impact’ discrimination. Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such ‘equal’ treatment is that the former is in fact treated less favourably than the latter. The concept of indirect discrimination was first developed in the United States in relation to practices which had a disproportionate impact upon black workers as opposed to white workers: Griggs v. Duke Power Co. [1971] USSC 46; (1971) 401 US 424. Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable.”
[30] There is an issue as to whether the word “discrimination” in s.153 of the FW Act is confined to direct discrimination or whether it extends to indirect discrimination. As was noted by Mason CJ and Gaudron J in Waters, “[w]ithin the Australian legal system, it is usual for anti-discrimination legislation to ban discriminatory practices in terms which deal separately with treatment which differentiates by reason of some irrelevant or impermissible consideration and with practices which, although not overtly differentiating on that basis, have the same or substantially the same effect.” 10 Waters was a case where the complainants relied upon the statutory prohibitions against indirect discrimination, which prohibitions invariably contain a reasonableness qualification. It is at least arguable that the absence of any reference to indirect discrimination in the FW Act and the absence of a reasonableness qualification in s.193 and s.195 means that the legislature intended a section such as s.153 to apply to indirect discrimination. This issue was not the subject of full argument and we are disinclined to adopt a firm position in the absence of full argument. For the purposes of the present appeal we will assume that s.153 applies to indirect discrimination.
[31] When construing s.153 in the context of the FW Act as a whole we think that some weight must be given to the use of the word “against” in s.153. A modern award must not contain a term that “discriminates against an employee” on one of the enumerated grounds; grounds that constitute a relatively comprehensive specification of the grounds on which persons are subject to adverse discrimination. In our view, that language, and the nature of the enumerated grounds, suggests that the legislature intended only to proscribe terms that discriminate adversely against an employee so that s.153 does not prohibit terms that discriminate in favour of an employee. We recognise that a class of employee may be discriminated against by the mechanism of treating all other classes of employee more favourably.
[32] The Vice President clearly regarded the variation proposed in his draft determination as favourable to secondary school students. There was evidence from which the Vice President was entitled to conclude that the minimum engagement period in clause 13.4 of the Retail Award had the effect of preventing secondary school students who wanted to engage in casual work after school from engaging in that work. He was conscious of the scope for disadvantage accruing to secondary students engaged in accordance with the variation proposed by the NRA and confined it in ways designed to address that potential for disadvantage. The variation proposed by the Vice President discriminates in favour of secondary school children and not against them. We are also not satisfied that the intended provision would otherwise operate contrary to the requirements of s.153 of the Act. Accordingly, the proposed variation is not prohibited by s.153 and that ground of appeal is not made out.
[33] On the rehearing we are not persuaded that the decision of the Vice President is affected by error. Accordingly, we are not entitled to exercise the powers in s.607(3) of the FW Act. The appeal must be dismissed.
[34] We would note that the SDA mounted a substantial case at first instance and identified a variety of concerns about the variation sought by the NRA. As noted by the Vice President in his decision, the implementation of the final determination, and any evidence as to its effect, may be assessed by the Full Bench that conducts the review of the Retail Award in 2012 pursuant to item 6 of Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
[35] The stay issued in this matter is also discharged.
SENIOR DEPUTY PRESIDENT
Appearances:
W. L. Friend SC, with C. Dowling, of counsel, for the Shop, Distributive and Allied Employees Association.
C. Symons for the National Retail Association and for the Australian Chamber of Commerce and Industry (intervening).
N. Tindley for the Australian Retail Association (intervening).
P. O’Grady, of counsel, for the Victorian Minister for Employment and Industrial Relations (intervening).
Hearing details:
2011.
Melbourne:
July 15.
5 See Coal and Allied Operations Pty Ltd v AIRC (2001) 203 CLR 194 at [17] and [32]
6 (1936) 55 CLR 499 at 504-5
7 [2011] FWA 3777 at [39]
8 See, for example, the summary in Barach v University of New South Wales [2010] FWAFB 3307 at [16]
9 (1992) 173 CLR 349
10 (1992) 173 CLR 349 at 357
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