DECISION

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards – General Retail Industry Award 2010 – Supplementary Decision
(AM2017/43)

4 yearly review of modern awards – General Retail Industry Award 2010 – award specific penalty rates claims.

[1] On 27 September 2018 we issued a decision 1 (the Decision) dealing with two claims to vary the General Retail Industry Award 2010 (the Retail Award) as part of the 4 yearly review of modern awards. The ARA and MGA (the Retail Employers) sought to vary clause 30.3(c) to reduce the rates payable for shiftwork performed on Sundays. If granted the variation would reduce the Sunday shiftwork rate from 200 per cent to 175 per cent for full time and part time employees and from 225 per cent to 200 per cent for casual employees.

[2] The Shop, Distributive and Allied Employees Association (SDA) sought to vary the penalty rates for casuals on Saturday and for evening work on Monday to Friday. In short, the SDA sought a penalty payment of an additional 25 per cent for ordinary hours worked by casual employees after 6pm Monday to Friday, and for all ordinary hours worked on a Saturday.

[3] In the Decision (at [221]) we granted the Retail Employers claim:

‘The modern awards objective is to ‘ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net of terms and conditions’, taking into account the particular considerations identified in paragraphs 134(1)(a)–(h). We have taken into account those considerations insofar as they are relevant to the matter before us and have decided to reduce the Sunday shiftwork penalty rate for full-time and part-time employees, from 200 per cent to 175 per cent and from 225 per cent to 200 per cent for casuals.’

[4] At [263] of the Decision we granted the SDA’s claim:

‘The modern awards objective is to ‘ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net of terms and conditions’, taking into account the particular considerations identified in paragraphs 134(1)(a)–(h). We have taken into account those considerations insofar as they are relevant to the matter before us and have decided to grant the SDA’s application to vary the Retail Award. We deal with the transitional arrangements associated with these increases in Section 7 of our decision.’

[5] The transitional arrangements associated with the variations were dealt with in Section 7 of the Decision. At [275] we set out the transitional arrangements in respect of the Sunday shiftwork rates, as follows:

‘We have decided that the transitional arrangements set out below are necessary to ensure that the Retail Award achieves the modern awards objective.

Full time and part time shiftworkers

1 November 2018 195 per cent

1 July 2019 190 per cent

1 July 2020 180 per cent

Casual shiftworkers (inclusive of casual loading)

1 November 2018 220 per cent

1 July 2019 215 per cent

1 July 2020 205 per cent’

[6] At [284] we set out the transitional arrangements in respect of the adjustment to the Saturday rate for casuals and the extension of the evening work Monday to Friday penalty rate, as follows:

‘In respect of the adjustment to the Saturday rate for casuals and the extension of the evening work Monday to Friday penalty we have decided that the transitional arrangements below are necessary to ensure that the Retail Award achieves the modern awards objective:

Saturday work – casuals

1 November 2018 A casual employee must be paid an additional 15 per cent for all work performed on a Saturday

1 October 2019 A casual employee must be paid an additional 20 per cent for all work performed on a Saturday

1 March 2020 A casual employee must be paid an additional 25 per cent for all work performed on a Saturday

Evening work: Monday to Friday

1 November 2018 An additional 5 per cent will be paid to casuals for hours worked after 6pm

1 October 2019 An additional 10 per cent will be paid to casuals for hours worked after 6pm

1 March 2020 An additional 15 per cent will be paid to casuals for hours worked after 6pm.

[7] On 1 October 2018 we issued a correction order 2 in the following terms:

‘The decision issued by this Full Bench on 27 September 2018 [[2018] FWCFB 5897] is corrected as follows:

•  The transitional arrangements set out at para [275] are corrected as follows:

Full time and part time shiftworkers

1 November 2018 195 per cent

1 July 2019 190 per cent

1 July 2020 175 per cent

Casual shiftworkers (inclusive of casual loading)

1 November 2018 220 per cent

1 July 2019 215 per cent

1 July 2020 200 per cent

•  The transitional arrangements set out at para [284] are corrected as follows:

Evening work: Monday to Friday

1 November 2018 An additional 5 per cent will be paid to casuals for hours worked after 6pm

1 October 2019 An additional 10 per cent will be paid to casuals for hours worked after 6pm

1 March 2020 An additional 15 per cent will be paid to casuals for hours worked after 6pm.

1 October 2020 An additional 20 per cent will be paid to casuals for hours worked after 6pm

1 March 2021 An additional 25 per cent will be paid to casuals for hours worked after 6pm.’

[Changes highlighted in red]

[8] In correspondence dated 5 October 2018 the SDA noted that the correction to paragraph [275] imposes a further reduction on what was originally provided for in that paragraph, namely an endpoint of 180% for full time and part time shiftworkers and 205% for casual shift workers. The SDA then submits:

‘The SDA invites clarification from the Full Bench as to whether there has been an inadvertent error in the Full Bench's decision which requires further correction or re-correction .

The Full Bench's attention is drawn to paragraph [192] of the primary decision. There, the Full Bench acknowledged that it was no part of the employers' case to seek any reduction in the component of the Sunday shiftwork penalty which relates to the disutility of shiftwork itself. The point was further emphasised by the Full Bench setting out the relevant extract (complete with emphasis added) of the Retail Employers' written submission dated 21 May 2018. Consistent with the case as presented by the Retail Employers, the Full Bench's reasons for decisions, as originally articulated in paragraph [275] accepted a reduction in the penalty rate component of the shiftworker rate which mirrored the same reduction that had been found to be appropriate to apply to Sunday non shiftworkers.

The correction now made to paragraph [275] imposes, it is submitted anomalously, a greater reduction for shiftworkers (one not sought by the employers) than the reduction to penalty rates previously determined to meet the modern awards objective for non shiftworkers working the same hours and presumably suffering the same degree of disutility for doing so…

If the decision to pay a lower penalty rate to shiftworkers than applies to non-shiftworkers was an inadvertent error, it would appear that the original form of paragraph [275] will need to be reinstated, and paragraphs [221] and [269] will require correction.’

[9] Reply submissions were filed by the National Retail Association on 18 October 2018 and by the Retail Employers on 23 and 29 October 2018. The various Retail Associations oppose the SDA submission and submit that no further correction is necessary. We agree.

[10] The SDA’s contention ignores the fact that the Retail Award does not establish a standard shift loading that applies at all times. Shiftwork payments for weekend work are not expressed as a 30% shiftwork component and an additional amount for working on weekends. Weekend shift loadings are expressed on a single, composite loading.

[11] The SDA contends that granting the Retail Employers claim:

‘imposes, it is submitted anomalously, a greater reduction for shiftworkers (one not sought by the employers) than the reduction to penalty rates previously determined to meet the modern awards objective for non shiftworkers working the same hours and presumably suffering the same disutility for doing so.’

[12] Contrary to the submission put, the Corrected Decision does not go beyond what was sought by the Retail Employers – so much is clear from the Draft Determination filed by the Retail Employers on 31 July 2017.

[13] Nor does the Corrected Decision give rise to an anomaly with respect to the Saturday shiftwork rates. The rates for Saturday shiftwork -150% for full time and part time and 175% for casuals – sits conformably with the new Sunday shiftwork rates of 175% and 200%. Sunday shiftwork will attract a 25% premium over shiftwork performed on a Saturday. Such a differential is consistent with the differential applicable to non-shiftworkers working on a Saturday and Sunday (ie 125% on Saturdays and 150% on Sundays for full time and part time employees).

[14] Further, the SDA now seeks to advance a submission which it did not put in the substantive proceedings. The SDA chose to advance a very limited argument in opposing the claim. It opposed any reduction in Sunday shiftwork penalties, submitting that there was no evidence before the Commission to support the application. We considered, and rejected, that argument. At [199] of the Decision we said:

‘In view of the findings and determination in the Penalty Rates Decision in relation to the Retail Award it is appropriate that the Sunday shiftwork rates be reviewed.’

[15] At [200] to [218] we dealt with the s.134 considerations and at [221] we set out our conclusion (see above at [3]). The Correction Order made on 1 October 2018 is entirely consistent with the Decision of 27 September 2018. No further amendment to the Decision is necessary in respect of the reduction in Sunday shiftwork rates.

PRESIDENT

Appearances:

Mr W Friend of counsel for the Shop, Distributive and Allied Employees Association

Mr A Millman for the National Retail Association Limited, Union of Employers

Mr J Stamatelos for The Australian Retailers Association and Master Grocers Australia Limited

Hearing details:

2018.

Melbourne, Brisbane (video hearing).

October 29.

 1   [2018] FWCFB 5897

 2   [2018] FWCFB 5897

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