[2010] FWAFB 305 |
FAIR WORK AUSTRALIA |
DECISION |
Workplace Relations Act 1996
s.576H—Commission may vary modern awards
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch 5, Item 14—Variation of modern award
GENERAL RETAIL INDUSTRY AWARD 2010
[MA000004]
JUSTICE GIUDICE, PRESIDENT |
MELBOURNE, 29 JANUARY 2010 |
[1] This decision concerns seven applications to vary the General Retail Industry Award 2010 1 (the modern award). The applications were made pursuant to s.576H of the Workplace Relations Act 1996 and were not determined by 31 December 2009. The applications will be determined by Fair Work Australia pursuant to item 14 of Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.2
[2] The applications have been made by certain employer groups and the Shop Distributive and Allied Employees Association (SDA). The applications cover various provisions of the modern award. There is some overlap between the applications and virtually no agreement between employers and the SDA.
[3] In general terms we have considered the applications in line with our general approach in establishing the terms of modern awards. We have had particular regard to the terms of existing instruments. Where there is significant disparity in those terms and conditions we have attached weight to the critical mass of provisions and terms which are clearly supported by arbitrated decisions and industrial merit. We have considered the impact of the provisions based on the information provided by the parties as to current practices. It is convenient to deal with the variations by subject matter.
Definitions and Classifications
[4] The National Retail Association Ltd (NRA) seeks to confine the Shop Manager classification in Level 8 to a manager of a shop with departments/sections, reclassify the Shop Manager to level 6 and reclassify the Assistant Shop Manager from level 6 to level 4. The NRA relies on the classification levels in pre-reform awards and Notional Agreement Preserving State Awards (NAPSAs). The SDA opposes the application and submits that the application is a repeat of material advanced in earlier parts of the award modernisation process.
[5] The exposure draft of this award covered the entirety of the retail sector and contained a combined classification structure developed from instruments governing the General Retail, Hair and Beauty, Pharmacy and Fast Food parts of the sector. Ultimately the award was split into four separate awards after the consultation process.
[6] We consider that some reconsideration of the classification levels is warranted. When the instruments regarding the separate parts are considered it is clear that the Level 6 rate of $17.63 per hour is more in line with the range of rates for similar classifications in pre-reform awards and NAPSAs applying to general retail. These rates are generally within the range of $16.78 and $17.87 per hour. The higher rate for level 8 is not appropriate except for a very senior level of manager. We will vary the definitions in clause 3.1 and wording of the classification definitions in Schedule B in line with the application.
[7] Business SA and the SDA seek to have the definition of general retail industry amended so as not to exclude retail activities conducted from seafood processing plants. No opposition to this proposition has been raised. We will vary the modern award as proposed.
Part-Time Employment
[8] The Chamber of Commerce and Industry of Western Australia (CCIWA), Retail Traders Association of Western Australia (RTAWA) and the NRA seek changes to the part-time employment provisions. They rely on the terms of cl.53 of the Minister for Employment and Workplace Relations’ award modernisation request (the consolidated request).
[9] Clause 53 of the request contains a requirement to ensure that the hours of work and associated overtime and penalty arrangements in the retail, pharmacy and any similar industries do not discourage employers from offering additional hours of work to part-time employees or from employing part-time employees rather than casual employees. Clause 53 was included in the consolidated request by an amendment made on 26 August 2009, after the modern retail award was made.
[10] We have generally agreed to amend part-time provisions regarding overtime, in the light of the change to the consolidated request, to make it clear that when variations to part-time hours are agreed in writing overtime is not payable for such agreed additional hours unless the total hours exceed 38 per week or the other limits on ordinary hours. Such changes assist in making additional hours available to part-time employees subject to their genuine agreement. We will vary the modern award to replace the second sentence of cl.2.7 to read as follows:
“All time worked in excess of the hours as agreed under clause 12.2 or varied under clause 12.3 will be overtime and paid for at the rates prescribed in clause 28.2—Overtime(excluding shiftwork)”
[11] To avoid any confusion we will also delete cl.26.3(b).
[12] The SDA also seeks a very detailed alternative part-time employment provision. We do not believe that the level of prescription sought is warranted.
Hours of work
[13] The NRA seeks variations to the hours of work provisions for retailers who traditionally trade longer hours by allowing ordinary hours to be worked until 11pm when trading hours extend beyond 9pm Monday to Friday or 6pm on Saturdays and Sundays. It relies on provisions of pre-reform awards and NAPSAs which provide for flexibility in hours limitations depending on the nature of the shops and their trading hours. Unfortunately the pre-reform Awards and NAPSAs are not uniform – or even broadly consistent. The flexibility in hours in the modern award is confined to newsagents and video shops. Other employer groups support the application. The SDA submits that such a reconsideration of matters determined during the award modernisation process should not be permitted.
[14] We accept the logic that business needs reflected in the trading hours of the business should be a factor in establishing the limits on working of ordinary hours. We have accepted the concept in providing flexibility for newsagents and video stores. In a variety of ways it is also reflected in previous instruments. It is appropriate that a late night penalty applies to compensate for the social inconvenience of such hours, but requiring normal trading hours to be worked only on an overtime basis is generally not appropriate. We will insert a new cl.26.2(b)(iii) in line with the NRA application.
[15] The SDA seeks to split cl.27 to provide for different provisions for full time and other employees and create a new clause regarding rostering principles. In our view the changes are unnecessary.
[16] The CCIWA and RTAWA seek to limit the prescription regarding the working of ordinary hours. In our view the existing provisions have not been shown to be inappropriate.
Rest breaks
[17] The SDA seeks to limit the scope of the award flexibility provision so that it does not apply to rest breaks. This would prohibit individual flexibility agreements in relation to rest breaks. The terms of the individual flexibility clause were developed after extensive submissions from a wide range of interested parties. Departures from the model provision have been very limited. We are not prepared to depart from the model provision on what has been advanced by the SDA in this case.
Sunday penalties
[18] The NRA, CCIWA, RTAWA and the Australian Retailers Association (ARA) seek to reduce the Sunday penalty rates for full time employees from 100% to 50% and for casual employees from 125% to 50%. The rates sought are reflected in NAPSAs applying in New South Wales and to Queensland exempt shops but are not generally reflected in other pre-reform awards and NAPSAs. The modern award rate of 100% for full time employees is in line with the existing rate in Victoria, the Australian Capital Territory, Queensland non-exempt shops, Western Australia and Tasmania. In our view the critical mass supports the retention of this provision.
[19] For casual employees there is a case for reducing the penalty payment. The level of 100% applies in Victoria, Queensland non-exempt shops and the Australian Capital Territory. Other states are higher or lower, but we believe that 100% represents a fair outcome overall. We will provide that the casual rate for working on Sundays will be the same as for full time employees.
Public holidays
[20] The SDA seeks to rationalise the different forms of compensation for work on public holidays. We do not believe that a case has been made out to support the variations.
[21] The SDA also seeks an amendment to make it explicit that work on public holidays is voluntary. Public holidays are generally dealt with by the National Employment Standards (NES). We have provided limited supplementation to deal with matters not dealt with in the NES. The variations are opposed. A case has not been made out that the changes are necessary or appropriately supported by the wording of existing instruments.
[22] Further changes are sought by the SDA in relation to Christmas Day substitution and a non-working day provision. In the context of opposition by employers, the NES and limited award supplementation, we do not believe that a case for these variations has been established.
[23] The CCIWA, RTAWA and ARA seek a reduction in penalty payments for working on public holidays. The change is not supported by reference to existing instruments and is strongly opposed by the SDA. A case has not been made out for the variations.
Uniform allowance
[24] The NRA seeks to reduce the uniform allowance in the modern award from $6.25 per garment per week to $6.25 per week and $1.25 per shift for part-time and casual employees. The CCIWA, RTAWA and the ARA seek to delete the provision entirely or reduce the allowance to the level sought by the NRA. A review of the pre-reform awards and NAPSAs reveals significant disparity in relevant provisions ranging from no allowances at all to the Victorian Award which contains the allowances provided in the modern award. We accept that the application seeks an allowance level which is more in keeping with the critical mass of previous instruments. We will vary the modern award in line with the application.
Junior rates
[25] The SDA seeks to exclude junior rates from applying to trades classifications. The application is opposed and not supported by underpinning instruments. We reject the application.
Excess travelling costs
[26] The SDA seeks to delete the three week limitation on the excess travel costs allowance. Its rationale is to provide limited relief for short-term relocations. The application is not based on existing instruments and is opposed. The application is rejected.
Cold work disability
[27] The SDA seeks to have the allowance in cl.20.8(b) cumulative on the allowance in cl.20.8(a). The application is consistent with previous instruments. We grant the application.
Broken Hill allowance
[28] The SDA seeks the Broken Hill Allowance be retained in a similar manner as Western Australia and Northern Territory district allowances. The application is supported by the Barrier Industrial Council. No party opposed the application. The allowance is of long standing and not an insignificant amount. We will amend the district allowance clause to reflect the terms of the application.
Annual leave loading
[29] The SDA seeks to remove the word ‘weekend’ from the clause relating to penalty payments. The change is not supported by reference to existing instruments and is opposed. We reject the application.
Annual leave
[30] The SDA seeks to limit the ability of an employer to require leave to be taken when more than 8 weeks is accrued. The application is not supported by reference to existing instruments and is opposed. An appropriate case has not been made out to support the application.
Compassionate leave
[31] The SDA seeks to supplement compassionate leave by reference to existing instruments applying in the retail industry. The NES contains a uniform national standard for this form of leave and the standard has generally not been supplemented in modern awards. The circumstances do not warrant supplementation in this case. The application is rejected.
Jury service
[32] The SDA seeks a clause reimbursing lost income for employees who undertake jury service. Again, the NES contains a uniform national standard for jury service which has generally not been supplemented in modern awards. There is no basis for supplementation in this case. The application is rejected.
PRESIDENT
1 MA000004.
2 Schedule 5 was modified by the Fair Work Legislation Amendment Regulations 2009 (No.2) on 14 December 2009.
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<Price code C, MA000004 PR992723 >