AW796250 PR941526
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.99 notification of industrial dispute
s.107 reference to a Full Bench
Shop, Distributive & Allied Employees' Association
and
$2 and Under and Others
(C No. 75644 of 1998)
SHOP, DISTRIBUTIVE & ALLIED EMPLOYEES' ASSOCIATION - VICTORIAN SHOPS INTERIM AWARD 2000
(ODN C. No. 33323 of 1991)
[AW796250 Print R5287]
SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION - VICTORIAN SHOPS INTERIM (ROPING-IN NO. 1) AWARD 2003
(ODN C No. 75644 of 1998)
[AW796250 PR928280]
Various employees |
Retail industry |
JUSTICE GIUDICE, PRESIDENT |
|
SENIOR DEPUTY PRESIDENT WATSON |
|
COMMISSIONER RAFFAELLI |
MELBOURNE, 3 DECEMBER 2003 |
Retail industry - fixation of penalty rates - work in ordinary hours on Sundays.
DECISION OF JUSTICE GIUDICE
[1] On 17 January 2003 the Commission handed down its decision in an application by the Shop, Distributive and Allied Employees' Association (SDA) to bring a very large number of retail employers in Victoria under federal award coverage.1 Following that decision an award was made on 4 March 2003. That award is known as the Shop, Distributive and Allied Employees' Association - Victorian Shops Interim (Roping-in No. 1) Award 2003 (the roping-in award).2 The award roped in some 17,000 employers to the Shop, Distributive & Allied Employees' Association - Victorian Shops Interim Award 2000 (the parent award).3
[2] Most of the provisions of the roping-in award commenced to operate on 17 February 2003.4 The weekend penalty rates, however, did not commence to operate until 17 May 2003.5
[3] The Commission decided that not all of the provisions of the parent award were appropriate for the employers bound by the roping-in award and alterations were made in some areas. The most important alteration, for the present purpose, was the introduction of a provision for ordinary hours of work between 9.00 am and 6.00 pm on Sundays for what may conveniently be described as non-exempt shops. Shops in this category comprise the vast majority of respondents to the roping-in award. Under the parent award work performed by employees in non-exempt shops on Sundays is overtime and is remunerated at double time. The Full Bench fixed the rate for work performed in ordinary hours on Sundays in non-exempt shops covered by the roping-in award at time plus a penalty of 50%. That penalty was fixed on an interim basis pending further evidence and submissions.
[4] In reserving for further consideration the penalty rate to apply to work performed by employees in non-exempt shops in ordinary hours on Sundays the Full Bench said this:
"[89] We turn now to the appropriate rate of remuneration for Sunday work. Arbitrated decisions on the issue are difficult to find. Reference was made to decisions in the hospitality and fast food industries. In the first decision the rate for work performed in ordinary hours on Sunday was fixed at time and three quarters [Print K7601, 6 May 1993]. In the fast food industry the rate was fixed at time and a half [AW806313]. We are conscious of the fact that our decision permitting ordinary hours of work on Sunday has the potential to cause consequential claims in other awards, not least in the interim award itself. It is also significant that, so far as we are aware from the parties submissions, this is the first time the Commission has decided that ordinary hours of work should be permitted in non-exempt shops on Sundays. For that reason it is desirable that all parties potentially affected have the opportunity to make submissions, and if necessary call evidence, in relation to the appropriate rate of remuneration for work in ordinary hours on a Sunday. We therefore intend to provide an opportunity for further submissions on the issue. We shall make provision for a penalty rate of 50% for work performed in ordinary hours on Sunday as an interim measure."6
[5] Following the January 2003 decision a program was established for the filing of contentions and material and the Commission sat on 25, 26 and 27 August 2003 to hear evidence and final submissions.
[6] I agree with and gratefully adopt the summary of these proceedings and the account of the evidence and submissions of the parties given by the two other members of the Bench. I also agree with their conclusion that the evidence of Dr Bittman and Dr Russell demonstrates a significant social disability associated with work on a Sunday, subject only to the reservation that it suits some people to work on that day. I respectfully disagree with their conclusion as to the appropriate penalty for work performed in ordinary hours on a Sunday.
[7] The SDA submitted that the Commission should apply the existing Federal standard for work performed in ordinary hours on a Sunday and that standard is a penalty rate of double time. It relied on a survey of awards generally which showed that 72% of awards provide for a penalty of double time or greater for ordinary hours on a Sunday. It was submitted that the remaining 28% of awards did not cover comparable work or could not be relied on for other reasons. In relation to the retail industry in Victoria it was submitted that there are seven multiple employer awards which provide for work in ordinary hours on Sunday, five of which provide the rate of double time for such work. The Master Grocers' Association of Victoria Ltd Consent Award 1994 provides for time plus 50%7 and the National Fast Food Retail Award 2000 provides for time plus 75%.8 For various reasons it was submitted that neither of these awards provide a basis for departing from what was referred to as the double time standard. Reliance was also placed on the provision in the parent award for double time for work performed in ordinary hours on Sundays in exempt shops. A Sunday rate of double time, both for ordinary hours and overtime, has existed in the retail industry in Victoria since 1922. The number of shops coming within the exempt classification has expanded over recent years but particularly since 1992.
[8] The reference to the penalty rates applying to employees in exempt shops under the parent award needs some explanation. The term exempt shops refers to a category of shops which by reference to type or type of merchandise was exempt from the laws which regulated hours at which retail stores were legally permitted to trade. Such stores might be generally described as smaller stores carrying convenience items.
[9] The Australian Retailers Association of Victoria's (ARAV) position, supported by the Victorian Employers' Chamber of Commerce and Industry (VECCI), is that a penalty rate of 50% is fair and equitable for both employers and employees. Such a penalty is adequate to compensate employees for the disability of working on Sunday while not necessarily deterring retailers from trading on Sunday with the consequential adverse impact on employment such a deterrent entails. A penalty of 50% is double the penalty which will apply to work performed in ordinary hours on Saturday under the roping-in award.
[10] In making safety net awards the Commission is to be guided by the objects of the Workplace Relations Act 1996, the objects of Part VI of that Act and, in particular, the terms of s.88B(2). That section reads:
"88B Performance of Commission's functions under this Part
...
(2) In performing its functions under this Part, the Commission must ensure that a safety net of fair minimum wages and conditions of employment is established and maintained, having regard to the following:
(a) the need to provide fair minimum standards for employees in the context of living standards generally prevailing in the Australian community;
(b) economic factors, including levels of productivity and inflation, and the desirability of attaining a high level of employment;
(c) when adjusting the safety net, the needs of the low paid."
[11] In relation to the question of fairness it is of course implicit that the Commission should consider fairness both from the perspective of the employees who carry out the work and the perspective of employers who provide the employment and pay the wages and to balance the interests of those two groups. This must be done in the context of any broader economic or other considerations which might affect the public interest. In deciding what minimum standard should apply it is necessary to have regard to the prevailing circumstances and to the merits of the case, bearing in mind the desirability of consistency between safety net awards.
[12] In fixing penalty rates in a safety net award it is appropriate to have regard to the penalty rate structure in the award under consideration and in other relevant awards including awards applying to the same industry in other states. While awards applying in other industries cannot be disregarded completely, they are of less relevance. In this case regard should be had firstly to the penalty provisions in the parent award.
[13] The penalty rate for work performed in ordinary hours on Sunday in exempt shops under the parent award is a relevant consideration but its importance as a precedent is reduced by a range of considerations. The first is that the rate was first fixed in a different industrial and trading hours context. All work on Sundays in the retail industry attracted a double time penalty and there was no evening or Saturday afternoon work in ordinary hours. In more recent times ordinary hours have been extended during the week and on Saturday afternoons. The parent award provides that work within ordinary hours between 6.00 pm and 9.00 pm on weekdays in non-exempt shops should attract a penalty of 25%.9 It also provides that work in ordinary hours between 7.00 am and 6.00 pm in those shops on Saturdays should attract a penalty which in due course will be 25%.10 The roping-in award provisions are to the same effect, except that the award already prescribes a penalty of 25% for work in ordinary hours on Saturdays. While these changes have occurred the rate for Sunday work in exempt shops has remained unaltered.
[14] The spread of ordinary hours for exempt shops on Sundays in the parent award varies dependant on the type of shop. The shortest spread of hours is from 10:00 am to 5:00 pm. The longest spread of hours (for authorised newsagents) is from 5:00 am to 10:00 pm.11 The spread of ordinary hours for non-exempt shops under the roping-in award is from 9:00 am to 6:00 pm. These differences provide another reason why the penalty rate for work performed in ordinary hours in exempt shops may not be an appropriate guide for the penalty to apply in non-exempt shops.
[15] It is also relevant that the number of exempt shops which have been covered by federal awards in Victoria is relatively small. As explained by the ARAV, between 1994 when federal awards were first made in the retail industry inVictoria and the simplification of those awards in 2000 a total of about 87 shops may have been able to claim exempt status. The roping-in award applies to about 17,000 retailers.
[16] There is a further reason why too much weight should not be given to the penalty which attaches to ordinary hours of work on Sundays in exempt shops in the parent award. The penalty rate of 100% was fixed at a time when work was not permitted in ordinary hours on Sundays in non-exempt shops. The decision to permit work in ordinary hours on Sunday for all shops is a relevant change in circumstances which should be given due weight.
[17] As already mentioned the penalty rate for work in ordinary hours in non-exempt shops on Saturday under the roping-in award is 25%. The penalty rate for work in ordinary hours under the parent award is also to be treated for practical purposes as 25%. The history of that provision is dealt with in the January 2003 decision.12 The penalty for ordinary hours on Sunday should bear a proper relationship to the Saturday penalty. The proposition that the disability of Sunday work is four times the disability of Saturday work cannot be accepted. For this reason a penalty of double time is excessive.
[18] The penalty for work in ordinary hours in non-exempt shops between 6.00 pm and 9.00 pm on weekdays is also 25%. The penalty for work in ordinary hours in such shops on Sundays should bear a proper relationship to that penalty. The proposition that the disability of working on Sunday is four times the disability of working between 6.00 pm and 9.00 pm on weeknights cannot be accepted.
[19] It is also relevant that night shift workers under the parent award are paid at double time for shift work performed on Sundays, while for shift work performed on weekdays there is a shift penalty of 30% for full-time and part-time employees and 45% for casual employees.13 The additional penalty for night shift work on Sunday is thus 70% or 55% depending upon the category of employment.14 This is another indication that a penalty of 100% for work in ordinary hours on Sundays is excessive.
[20] ARAV also contend that the penalty for working ordinary hours on a Sunday should be less than the penalty for working overtime on a Sunday because overtime rates include compensation for working outside the daily spread of hours or for working additional hours on a weekly or other cyclical basis. The disability of working ordinary hours on Sunday is less than the disability of working overtime on Sunday. Reliance was placed on a decision of the Full Bench of the Queensland Industrial Relations Commission. In that case, in fixing a penalty of 75% for work performed in ordinary hours under the Miscellaneous Workers' Award - State Government,15 the Bench expressed the view that the Sunday penalty should be greater than the Saturday penalty but less than the overtime rate payable on Sunday.16 In my view this is a consideration militating against a penalty of 100%.
[21] Turning from the award to the bargaining area, most of the enterprise bargaining agreements to which the SDA is a party in the retail industry provide a penalty of 50% for ordinary hours worked on Sunday. Although the SDA contends that the double time penalty has been traded off for equivalent wage increases, on what was submitted this is unlikely to be the case for part-time or casual employees who work only at weekends. This constitutes some evidence that a penalty of 100% is excessive, although of itself it is not particularly persuasive evidence.
[22] Turning to other awards, while in many industries double time is the standard for ordinary hours work on Sunday, there are a number of relevant awards in which the penalty is lower. These include the Master Grocers' Association of Victoria Ltd Consent Award 1994 (a penalty of 50%),17 the National Fast Food Retail Award 2000 (a penalty of 75% in Victoria and 50% in New South Wales)18 and The Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1998 (a penalty of 75%).19 Although the last of these awards applies in an area which is not regarded as part of the retail industry, there are obvious similarities in the work. The penalty in the first two awards was established with the consent of the SDA. The penalty rate in the third award was set by arbitration in 1993.20 While the SDA pointed to a number of other awards covering retail establishments in Victoria, such as the Hairdressing and Beauty Services - Victoria - Award 2001,21 which provide for double time on Sunday, such awards are of limited relevance, because the incidence of Sunday trading under them is less.
[23] With respect to the conditions applying in other States, the following table sets out the position in abbreviated form.22
Ordinary time rate for |
Overtime rate for Sunday | |
Australian Capital Territory |
50% |
100% |
Northern Territory |
50% in clause 14 shops |
100% |
New South Wales |
50% |
100% |
Queensland |
Independent and exempt shops 50% Non exempt shops 100% |
100% 100% |
South Australia |
Only retail outdoor sales people can lawfully roster ordinary hours 100% |
With 1 exception only overtime 100% |
Ordinary time rate for Sunday |
Overtime rate for Sunday | |
Tasmania |
Ordinary hours cannot be rostered for any employee |
Only overtime 100% |
Western Australia |
Ordinary hours for Small retail shops Special retail shops And pharmacies Consent must be got on each occasion 100% |
100% |
[24] The SDA contends that state awards covering the retail industry are of no assistance as they are numerous, contain inconsistent provisions and are the product of different award histories. In the alternative, the majority provide for a penalty of double time for ordinary hours worked on a Sunday.
[25] Work is permitted in ordinary hours on Sunday for shops generally only in New South Wales, Australian Capital Territory and Queensland. In New South Wales and the Australian Capital Territory the penalty is 50%. In Queensland it is 100% for work in non-exempt shops and 50% for work in exempt shops.
[26] The Industrial Commission of New South Wales sitting in Court Session fixed the Sunday penalty rate for retail shops generally at 50% in 1991, finding that a penalty of 50% adequately compensated employees for the disabilities of working on Sunday.23 The position in Queensland is curious with the 100% penalty for work in ordinary hours on Sunday in non-exempt shops being counterbalanced to some degree by the 50% penalty which applies to exempt shops.
[27] Finally, of some relevance, despite the particular history of fixation of penalties in the retail industry, is the Weekend Penalty Rates Case.24 In that case the Commonwealth Court of Conciliation and Arbitration fixed penalties of 25% for shift work performed in ordinary hours on Saturdays and 50% for shift work performed in ordinary hours on Sundays. (For jurisdictional reasons the Court declined to fix penalty rates for dayworkers on weekends.)
[28] Taking all of these considerations into account, but particularly the penalty rates under the parent award for work in ordinary hours on other days of the week, a penalty rate of 100% for work performed in ordinary hours on Sundays in the retail industry in Victoria is excessive. In the circumstances it is not necessary that I express a final view on the appropriate penalty rate.
[29] Although not agreeing with the penalty rate of 100%, I agree with what my colleagues propose in relation to the date of operation of the necessary award variation and the arrangements for settlement of the order.
BY THE COMMISSION:
PRESIDENT
DECISION OF WATSON SDP AND RAFFAELLI C
[30] This decision deals with an outstanding issue arising from proceedings in C No. 75644 of 1998, which commenced with the 26 June 1998 service by the Shop, Distributive and Allied Employees Association (SDA) of a letter of demand and log of claims on some 35,877 employers in the retail industry in Victoria.
[31] On 24 July 2000, a Full Bench determined that a dispute should be found.25 The Full Bench referred to Commissioner Whelan the task of properly identifying the respondents who were in dispute. On 29 December 2000, Commissioner Whelan made a finding of dispute between the SDA and some 24,422 employers.
[32] In part settlement of the dispute, the SDA sought the making of an award roping some 17,628 employers into the Shop, Distributive and Allied Employees Association - Victorian Shops Interim Award 200026 (the interim award). The making of the award was the subject of extensive proceedings, resulting in a decision by the Commission, as presently constituted, of 17 January 200327 (the January 2003 decision).
[33] The January 2003 decision resulted in the making of the Shop, Distributive and Allied Employees Association - Victorian Shops Interim (Roping-in No.1) Award 200328 (the roping-in award). It, applied the terms of the interim award to the respondent employers, save for special provisions contained within clause 6 of the roping-in award. The special provisions were:
[34] The substantive departures from the terms of the interim award, arising from the January 2003 decision, may be seen in:
[35] These departures from the interim award provide substantial flexibility to employers respondent to the roping-in award in the staffing of their shops and in particular on Sundays, relative to the terms of the interim award. The more beneficial provisions available to employer respondents to the roping-in award were directed to reflecting the reality that retailing in Victoria is a seven-day a week industry.31
[36] A further departure from the terms of the interim award arose in respect of the fixation of an interim rate of time and a half for work in ordinary hours on a Sunday. The reason for fixing an interim, rather than final, rate were explained in the January 2003 decision as follows:
"We turn now to the appropriate rate of remuneration for Sunday work. Arbitrated decisions on the issue are difficult to find. Reference was made to decisions in the hospitality and fast food industries. In the first decision the rate for work performed in ordinary hours on Sunday was fixed at time and three quarters. [Print K7601] In the fast food industry the rate was fixed at time and a half [AW806313]. We are conscious of the fact that our decision permitting ordinary hours of work on Sunday has the potential to cause consequential claims in other awards, not least in the interim award itself. It is also significant that, so far as we are aware from the parties submissions, this is the first time the Commission has decided that ordinary hours of work should be permitted in non-exempt shops on Sundays. For that reason it is desirable that all parties potentially affected have the opportunity to make submissions, and if necessary call evidence, in relation to the appropriate rate of remuneration for work in ordinary hours on a Sunday. We therefore intend to provide an opportunity for further submissions on the issue. We shall make provision for a penalty rate of 50% for work performed in ordinary hours on Sunday as an interim measure."32
[37] This decision deals with that outstanding issue.
SUBMISSIONS OF THE PARTIES
The SDA's Case
[38] The SDA submitted that the existing federal standard as to the payment for ordinary hours of work on a Sunday is double time. The standard of double time is evidenced by reference to federal awards generally, and also by awards operating in the retail industry particularly in Victoria.
[39] The SDA relied on a comprehensive examination of all simplified awards of the Commission to determine the prevailing standard for ordinary hours worked on a Sunday. An officer of the SDA, Mr Doug Drew, gave evidence33 that he had examined and analysed the 1,090 simplified awards of the Commission. By excluding awards which did not make provision for hours of work (e.g. awards dealing only with superannuation) and awards which did not provide for ordinary hours to be worked on a Sunday, the Commission's awards were reduced to 774. Of these, Mr Drew had found that some 556 or 72% provided for a penalty of at least double time. Additionally, he had further analysed the 28% of the 774 awards which did not provide for double time or higher and excluded those which provided for rates of pay significantly higher than the rates provided in the interim or roping-in awards as well as those in awards covering atypical employment areas and what can be termed enterprise bargaining awards. This resulted in about 86% of relevant awards providing for a double time penalty (or better).
[40] As a consequence of his cross-examination by the other parties and the Commission, Mr Drew provided the Commission with corrections and further results that considered both the inclusion and exclusion of awards which provided for the working of ordinary hours on a Sunday as shiftwork and the exclusions of awards containing significant higher rates of pay, atypical employment areas and enterprise bargaining awards to the group of 556 which provided for double time penalty. The result of various permutations indicated a range of 69% to 84% of the 774 awards that provided for double time.34
[41] It was put by the SDA that the standard evident across the federal award group was replicated when one considered the eleven multi-employer awards of the Commission that applied in the Victorian retail industry. Of the eight awards which provide for the working of ordinary hours on a Sunday, six provide a rate of double time.
[42] Moreover, of the two that do not provide for double time, the Master Grocers Association Victoria (Consent) Award 1994 was a consent award in which reduced Sunday penalties were balanced against enhanced ordinary rates of pay. The National Fast Food Award 2000 was said to have a unique history and emerged as a product of complex and inconsistent State award regulation.
[43] It was also put that double time for ordinary time work performed on a Sunday has long been the standard in the Victorian retail industry. It can be traced back to 1922, and certainly to 1950, where certain stores could trade on Sundays and where the payment to employees for working ordinary hours was double time. The incidence of such trading has, of course, increased markedly since 1950 and the double time rate has continued to apply.
[44] While in determining the standard as to Sunday work, federal awards are the appropriate measure, even if reliance is had to the common rule retail awards in the States and Territories, double time is the most common rate that applies.
[45] The SDA then referred the Commission to the purpose of penalty rates for Sunday work and particularly as it applied in the interim award and its predecessors.
[46] It has long been recognised that penalty rates (including those applying in respect of Sunday work) have been designed to either compensate employees for the inconvenience of being called upon to work at times that are outside normal work periods or to deter employers from rostering employees at such times, or a combination of both considerations.
[47] However, the SDA put that the Sunday penalty applicable to the Victorian retail industry and these awards (the interim award and the roping-in award) and their predecessors is designed to compensate employees for the disabilities of Sunday work rather than deter such work.
[48] This conclusion is based firstly on the fact that trading laws have always enabled working on Sundays (albeit on a more restricted basis years ago to that which currently applies) and therefore it would be incongruous to believe that the Sunday penalty of double time was intended to deter employers from employing labour on a day on which they could trade.
[49] Second, the decision of the former IRCV of 18 June 199235 concerned an employer application which included a demand for reduced penalties for Saturday and Sunday work. The IRCV reduced the Saturday penalty which was referred to as compensatory. It did not alter Sunday penalty rates on the basis that greater compensation ought apply to work performed on that day.
[50] Given that the Sunday penalty is compensatory, and it has been set at double time for many years, there is a heavy onus on those who seek to depart from such rate. Moreover, any proposal for change ought rely on evidence that the disability or inconvenience for working on Sunday has somehow reduced in recent times. None has been forthcoming.
[51] The extension of trading hours is not relevant to the issue of disability or inconvenience to employees. In any case, the extension of trading hours has been addressed by the Commission by its earlier decision to allow for ordinary hours to be worked on a Sunday and at the direction of the employer.
[52] As a counter to any perception that the disability associated with working on Sundays is somehow not as it was, the SDA relied on the evidence of several witnesses.
[53] First, Dr Michael Bittman, a Senior Research Fellow at the Social Policy Research Centre at the Australian National University gave evidence. He referred to himself as an expert on the collection and analysis of time-use statistics. His evidence included a "Report on the frequency of working on a Sunday and its effect on other activities"36 compiled on the basis of data, including unpublished material of the Australian Bureau of Statistics' (ABS) 1997 Time Use Survey. An outcome of the survey is that while among those Australians who are employed, about 80% work on weekdays, only one in three will work on Saturdays and one in five work on Sundays. His report also concluded that the incidence of Sunday work had not appreciably increased over the period from 1974 to 1997. Among working age people, the numbers working on a Sunday had increased from 9% to 17%.
[54] A further report from Dr Bittman, "Report on the effects working on a Sunday has on other activities"37 relied on a re-analysis of ABS data going to its 1997 Time Use Survey. First, it established that among working-age Australians, Sundays and to a lesser but not insignificant extent Saturdays are days on which more time than on weekdays will be spent on interaction with family and friends and in recreation and leisure. Second, working on Sundays resulted in reduced incidence of family and other social interaction and reduced leisure activities on such day.
[55] Dr Bittman's third report "Supplement to Report on the effects working on a Sunday has on other activities"38 considered whether "Sunday workers" could use the time off work during weekdays to make up for lost family, social and leisure activities foregone on Sundays. The result of Dr Bittman's findings was that people who work Sundays do not or are unable to make up on weekdays for the lost opportunities of family and social interaction.
[56] Dr Graeme Russell, Associate Professor in Psychology at Macquarie University also gave evidence. Broadly, he put first that academic and empirical research points to family and close relationships mattering to individuals and time together and shared activities are essential to sustain effective relationships. Second, findings including those of Dr Bittman point to Sundays as the best opportunity for such interaction with others to occur. They also show that those who work on Sundays have fewer opportunities to engage in significant family interaction. As a result it is highly likely that Sunday work requirements have a negative impact on the quality of family relationships and on child, family and individual outcomes.
[57] The SDA also relied on evidence from five retail workers. All five indicated a preference not to work on Sundays. They all referred to forgone socialising activities with family and/or friends and reduced leisure activities. In the circumstances, the payment of a penalty of double time is at least some compensation for the inconvenience caused, they said.
[58] The Victorian Secretary of the SDA, Mr Michael Donovan, gave evidence which included reference to his many years as an officer of the Association. His experiences were that the overwhelming majority of retail workers do not wish to work on Sundays. In his dealings with SDA members it is clear that Sunday remains a special day on which family activities, relaxation with friends and leisure activities are undertaken.
[59] The SDA next dealt with the incidence of time and a half penalty in enterprise bargaining agreements entered into by the Association. In that regard, the evidence of Mr Donovan was that such reduced penalties were negotiated in the context of the enhancement of other conditions particularly higher rates of pay.
[60] The fact that Sunday work under this award in contrast to the interim award is no longer voluntary underlines the need to apply a rate which properly compensates for the disability of having to work on Sundays. Further, it would be anomalous and inequitable that those required to work on Sundays received a lesser penalty than those who worked with their consent.
[61] The SDA also pointed to the consent from both the Australian Retailers Association of Victoria (ARAV) and the Victorian Employers' Chamber of Commerce and Industry (VECCI) to the making of the Hairdressing and Beauty Service (Roping-in No 1) Award 2003, whereby 3,215 businesses were effectively made respondent to the parent award which provides for the working of ordinary time on Sundays at a penalty of double time.
[62] Given that both the ARAV, VECCI and the Commonwealth agreed that some penalty payment should apply to work performed on ordinary hours on a Sunday, no basis has been put forward as to why it ought be time and one half.
[63] It also dismissed the contention that a double time penalty will deter retailers from trading. First, there was nothing to suggest why double time would deter trading while time and one half would not. Second, reliance on surveys conducted by the Commonwealth and ARAV in respect of the earlier proceedings in this matter were not on point. Those surveys did not deal with any reluctance to trade on Sundays if double time applied.
[64] The SDA challenged the continued intervention of the Commonwealth. Its earlier participation was to put a position that no roping-in award ought be made. However, now it was seeking to put a position in respect of a single term of the award. This is inconsistent with its previously stated basis for its intervention. Its submissions should be seen in that context.
[65] Reliance by the Commonwealth on its earlier survey that the double time penalty will adversely affect employment opportunities is to be rejected. In its earlier decision, the Full Bench found that the Commonwealth's survey did not provide a reliable basis for determining the extent of any likely employment effect.
[66] The SDA also rejected the Commonwealth's view that setting a penalty rate at double time would be a disincentive to bargain. Rather, it says, the making of the roping-in award has stimulated interest in agreement making. This is partly evidenced by a circular sent to new respondents to the award by the Department of Employment and Industrial Relations informing them of the ability to turn to agreements as a way of overcoming restrictions in the award. The Workplace Advisory Service of the Department is indicated as providing assistance in that regard.39
The ARAV's Case
[67] The ARAV continued to rely on its submissions and material put to the Commission in earlier proceedings.
[68] As to the outstanding issue of the Sunday penalty rate, it considered that the loading of 50% provides an appropriate balance between the interests of employers and employees.
[69] It relied on the Commonwealth's and the ARAV's surveys presented earlier in submitting that double time will deter retailers from trading and rostering employees on Sundays.
[70] Because employees under the roping-in award can work their ordinary hours on Sundays they are better off than those employees in the non-exempt areas covered by the interim award who, if made to work on Sundays, must work such in overtime. That is, they will probably have had to work their ordinary weekly hours on the other days and then work an extra eight hours on the Sunday. In its view the penalty for Sunday overtime should be higher than for ordinary time worked on such day. The penalty should not be as high when the disadvantage to the employee is not occasioned by the number of hours that are required to be worked but merely because of the day of the week on which the hours are worked.
[71] The ARAV challenged the SDA's contention that double time was somehow a standard for Sunday work in the Victorian retail sector. Reliance on the double time applicable to Sunday work for Exempt Shops under the interim award need to be put in the context of limited application of the exempt status. In the circumstances, the double time applicable to Exempt Shops cannot fairly contribute to any standard.
[72] The ARAV put that there has not been a consistent approach taken in either this Commission or in State tribunals in the settling of the penalty for ordinary work performed on a Sunday. It challenged Mr Drew's conclusions on a range of bases including reliance on awards which provide for double time but where work on Sunday is pursuant to facilitation agreements and inclusion of where Sunday is worked by shift workers.
[73] Of some guidance is the outcome of the case in the hospitality industry where the decision of Gay C of 6 May 199340 varied weekend penalties. Gay C set the Saturday penalty at 25% and that of Sunday at 75%. Thus the SDA's contention that double time is the Commission's standard ignores at least one important arbitrated decision in a not dissimilar industry.
[74] The ARAV then pressed the Commission to consider the major common rule retail awards that operate throughout Australia as this represented positions within the same industry. These reveal a penalty payment of 50% to be found in New South Wales and in the Australian Capital Territory. In the other States while double time applied (although 50% in Queensland) there were significant restrictions on the areas of retail trade where ordinary times could be worked on Sundays.
[75] Reference was also made to the decision of the Industrial Commission of New South Wales of 27 September 199141 where the Commission dealt with an application by the SDA which included a claim for an increase in the Sunday penalty from 50% to double time. The 50% rate had stood in the common rule retail award since 1937. The claim by the SDA for an increase in the penalty was the result of deregulation of trading hours and the consequent increase in the incidence of Sunday work. The Commission rejected any increased penalty.
[76] The ARAV put that not only was Sunday trade (and therefore work for retail employees) an accepted feature of the retail industry but that large numbers of retail employees were working pursuant to certified agreements which provided for a 50% penalty. Moreover, many employees in the Victorian retail industry who were affected by the recent roping-in have for many years been working on Sundays with no additional penalties.
[77] The ARAV dismissed any contradiction in its position because of its consent to the roping-in of large numbers of new respondents to the Hairdressing and Beauty Services - Victoria - Award 2000 where the Sunday penalty was double time. In that sector of the industry, Sunday work was rare.
The VECCI's Case
[78] In supporting a penalty of 50% for Sunday ordinary time, VECCI supported the submission of the ARAV.
[79] Whatever the rights or wrongs of the IRCV's decision in 1992 concerning Sunday and Saturday penalties, the current circumstances are different from those applying in 1992. Sunday trading is now a reality and employees subject to the roping-in award are expected to work on a Sunday if required to do so.
[80] As to the decision of Hingley C during the Award Simplification process concerning the interim award, the appropriateness or otherwise of provisions was not the focus of proceedings before him.
The Commonwealth's Case
[81] The Commonwealth supported a penalty of 50% for ordinary time work performed on a Sunday.
[82] While the penalty payment in the interim award may at first blush seem applicable to the roping-in award, on a close examination it is of limited assistance. The situation pertaining in the interim award is first one where all work performed on Sundays is by the agreement of employees. Second, these volunteers whether working ordinary hours or overtime on a Sunday must be paid a penalty of double time. Finally, in the non-exempt areas, Sunday can never contribute to an employee's ordinary hours.
[83] The interim award cannot be seen as an award appropriate to the contemporary needs of seven day retail trading.
[84] Further, in the context of the interim award, the position pertaining to Exempt Shops (where ordinary time could be worked on Sundays) was very much the exception and cannot be used as a guide to provisions in another award (i.e. the roping-in award) where ordinary time work can be performed on a Sunday on an unrestricted basis.
[85] The Commonwealth re-iterated its previous submissions which cautioned against imposing cost imposts on employers which would detract from employment. A penalty rate of 50% provided an appropriate balance between facilitating the availability of additional employment on Sundays and fairly compensating employees required to work on Sundays.
[86] The Commonwealth also stressed the need for the Commission to set appropriate and fair rates so that it does not discourage what should be the primary focus of encouraging agreement making at the workplace level.
[87] Commenting on the SDA's reference to standards as a guide to the settling of the Sunday penalty, the Commonwealth stressed the need to compare like with like. Thus, assistance may be gained from awards in the same industry and where such awards provide for the working of ordinary hours or consideration of awards in other industries but where the incidence of Sunday work in ordinary time is similar. Thus, the SDA's reliance on all simplified federal awards is simplistic.
[88] In that regard, the Commonwealth produced an exhibit42 which put that the simplified awards said by the SDA to provide for ordinary hours on Sunday can be segregated according to whether employers may require employees to work on Sundays or not and whether shiftwork is a feature of Sunday work. The compulsory work situation is distinguishable from the voluntary position. As to shiftwork, its existence within an award may be the influential determinant of the rate. Given that the award at hand provides that Sunday work is determined by the employer and shiftwork is not worked, the reference to penalties in those awards is consequently of no relevant utility.
[89] The Commonwealth also considered that it was important to take account of the gradation of penalty rates for ordinary hours worked. Thus, a rate of 100% for Sunday work was ill placed alongside 25% for Saturday work and of course no penalty for weekday ordinary hours.
CONSIDERATION
[90] The determination of the outstanding issue requires consideration of submissions of the SDA, the ARAV, on behalf of members respondent to the roping-in award, the VECCI and the Commonwealth Government (intervening). Reliance was placed on some evidence already before the Full Bench. Additional evidence was brought by the SDA. Reliance was also placed on documentary materials.
RATIONALE FOR THE SUNDAY PENALTY
[91] In deciding the appropriate penalty rate in the roping-in award for the working of ordinary hours on a Sunday, with a capacity for employers to require such work at that time, it is necessary to consider the appropriate rationale for the penalty. Historically, penalty rates for "unsociable" hours has involved consideration of additional compensation of employees in respect of disabilities and/or deterrence of work at such times.43 In our view, in the context of the reality that retailing in Victoria is a seven-day a week industry, as noted in the January 2003 decision,44 the Sunday ordinary time penalty in the roping-in award should be directed to the compensation for the disabilities upon employees and should not be directed to deterring the working of Sunday ordinary time hours. This approach is consistent with that of Gay C in respect of the hospitality industry.45 There appears to be no significant divergence between the parties in the present matter in respect of that approach.
THE DISABILITY ASSOCIATED WITH SUNDAY WORK
[92] It was accepted that some disadvantage arises for some employees from Sunday work. The ARA acknowledged that some disadvantage is had by some for working on Sunday.46 The SDA brought evidence from two expert witnesses in relation to the nature of Sunday work and the associated social disabilities. They were Dr Michael Bittman and Dr Graeme Russell.
[93] Dr Bittman prepared a report based on Australian Bureau of Statistics time-use data, which disclosed:
[94] Dr Bittman concluded that:
"...As compared to those who work on weekends, Sunday workers miss-out on key types of social participation and have less opportunity to balance the demands of work and family".51
[95] The data used by Dr Bittman is at an aggregate level. As such, it does not distinguish between employees within different family structures or with different views about working on a Sunday. Some employees working on Sunday would experience a less than average loss of time and opportunity for family and other social participation, whilst others would experience a greater than average loss. Nonetheless, it does show, in aggregate, a very substantial disability endured by persons working on a Sunday. Such disability, in our view, would be heightened in the context whereby provision is made in the roping-in award for the non-voluntary working of ordinary hours on a Sunday. It may be inferred from the pursuit of such a provision by the employer associations representing respondents to the roping-in award, that some employees will be compelled to work ordinary hours on a Sunday, against their wishes.
[96] Dr Russell assessed the research literature52 to conclude:
[97] In our view, the evidence of Dr Bittman and Dr Russell demonstrates a significant social disability associated with work on a Sunday.
FIXATION OF THE FINAL RATE
[98] The rationale of fixing a Sunday penalty rate for ordinary time work on the basis of providing compensation for the disabilities upon employees, applied in an abstract way, would involve the task of seeking to place a value upon the level of compensation required. It seems to us that such an exercise would necessitate a thorough assessment and fixation of a range of related penalties, such as Saturday penalties, having regard to associated disabilities, rather than the fixation of a single penalty rate in isolation. However, an abstract exercise of that type is not appropriate in the context of the present matter. We are required to consider the fixation of a final Sunday penalty rate in the context of the history of the provision, established approaches in relation to the making of a roping-in award and the statutory context. Further, we are now required to determine the single outstanding issue of the appropriate final rate for ordinary time work on a Sunday. We do so, without repeating it, in the context of the background,54 the statutory scheme,55 principles in respect of roping-in awards56 and factual context set out in the January 2003 decision.
[99] Consistent with the January 2003 decision,57 we regard the approach in Bengalla58 as an appropriate one. In that decision, the Full Bench stated that the discretion available to the Commission in deciding in respect of a roping-in application to insert special provisions
"must be exercised in light of all of the relevant circumstances as revealed by the material before the Commission. Allegations that particular provisions in the interim award are inappropriate, backed up by some material, are likely to be more persuasive than generalised assertions that the applicant must prove its case. This is because of the history of the various provisions in the interim award, a history to which we have earlier referred."59
[100] The Full Bench in Bengalla observed that:
[101] In our view, this approach directs us, in the context of a broader range of considerations, to a focus on the terms of the interim award in respect of the penalty rates applicable to ordinary hours worked on a Sunday, which has operated in respect of exempt shops for some time under both the interim award and the predecessor awards of the IRCV.
[102] A broad comparability between the respondents to the interim award, in terms of a diversity of types of retailers and size of businesses, also supports the appropriateness of the interim award conditions in respect of payment for work in ordinary hours on Sunday. In our view, the considerations in Bengalla of common occupations and competences, business competition, and common work value assessments, broadly considered as between the types of respondents to the roping-in award and the exempt shops respondent to the interim award, supports a focus on the relevant interim award provisions. We accept that there has been a long history of double time being the appropriate penalty for ordinary hours worked on a Sunday in the Victorian retail industry. The extent of operation of the provision for double time for ordinary hours on a Sunday, applicable in respect of Exempt Shops, is not apparent, although a consideration of the classes of shops would suggest there has been some application. Further, we accept the evidence of SDA Secretary, Mr Sullivan,63 that the operation of the provision has expanded since 1950, in respect of the previous State awards, and has expanded in respect of the interim award as the number of respondents has grown.
[103] We have been told that there are, currently, only 1,323 respondents to the interim award.64 Nonetheless, as noted in the January 2003 decision, the interim award is the only federal award with general application applying in the retail industry in Victoria.65 Further, the predecessor State awards had broader operation, with the same exempt shop provisions, until their expiry on 1 March 1993.66 Further some, albeit limited, application of those conditions as a result of deemed conditions arising out of the Employee Relations Act 1992 (Vic)67 may still have application in respect of some employees not governed by a federal award or agreement.
[104] A focus on the interim award is further supported by the approach of Gay C in respect of the hospitality industry, in which he thought it "appropriate to examine penalty rates (and other loadings for out of hours work) in the context of each particular award, having regard to the industry and the development of its award provisions."68
[105] Gay C continued:
"Thus events in one award can be of little determinative effect elsewhere."69
[106] We have considered the retention, in 1992, of the double time rate for work in ordinary hours on Sunday, in respect of Exempt Shops, by the majority decision70 of the IRCV. The majority clearly determined Saturday penalty rates on the basis of determining an appropriate rate to compensate employees, rather than fixing a rate to deter work at that time.71 In our view, it may be inferred that the same principle was applied in considering Sunday penalties and retaining the double time rate. This inference is supported by the specific consideration of and reference to relatively greater social disabilities associated with Sunday work by the majority.72 Accordingly, we are satisfied that the Sunday rate, which was translated to the interim federal award, was compensation based and was not directed to deterring ordinary time work on Sundays. The only material change that has occurred since 1992 is the greater incidence of Sunday trading in Victoria. In our view, that factor does not affect the disabilities endured by employees working on Sundays. As such, we think the double time remains appropriate. We have, in the January 2003 decision, had regard to present trading patterns by providing greater flexibility for employers by other means, specifically by extending ordinary hours to Sundays and providing that employers may require staff to work on Sundays.
[107] We note that Hingley C rejected claims to alter penalty rates in 1999, rejecting the proposition that deregulated shopping hours and new shopping patterns warranted a change to penalty rates (or in that matter an extension of ordinary hours):
"I am not persuaded, on what is before me, that the combination of deregulated shop trading hours and the evolution of new shopping lifestyles and consumer demands, consequentially means that for retail workers, an expanded daily spread of hours, late night hours and Saturday and Sunday work, are a sought after lifestyle corollary, diminishing the unsociability of such work schedules. It is a corollary of such changes, should the Commission so determine, that current or future employees with little or no bargaining power may be obliged to work extended evening, Saturday or Sunday hours against their domestic responsibilities or personal convenience as ordinary hours to retain or gain their employment."73
[108] The circumstances of Award regulation of Victorian retail employees also support a focus on Award conditions in Victoria. In this context, we repeat the findings in the January 2003 decision that:
"We accept that between 50 and 60% of Victorian retail workplaces are already covered by federal awards and agreements. We also accept that approximately 70% of the employees in the industry in Victoria are covered by federal awards and agreements. The extent of award coverage is a significant factor in this case. While the number of potential respondents is large by any standard, the fact that 70% of employees in the industry in Victoria are already covered by federal awards and agreements is a consideration which favours the SDA case. In so finding we are conscious that federal agreements are required to pass the no-disadvantage test as a condition of certification and therefore contain conditions at least comparable with those to be found in the federal awards applying in Victoria."74
[109] Plainly, federal awards and agreements operating in Victoria extend beyond the interim award. There are, presently, ten federal multi-employer awards in effect in respect of retail employment other than the interim award (and the roping-in award).75 Of these, three do not provide for the working of ordinary hours on a Sunday. Of the remainder, five of seven, like the interim award in respect of Exempt Shops, provide for the payment of double time for ordinary hours on Sundays. As noted in the passage from the January 2003 decision cited above, conditions in retail industry agreements in Victoria are, on balance, at least comparable with those to be found in the federal awards applying in Victoria.76
[110] An examination of retail awards operating in Victoria, beyond the interim award, further supports the appropriateness of the double time provision for ordinary hours on a Sunday as a minimum safety net provision in the roping-in award.
[111] Provisions within the major retail awards in other States and Territories show a mixed picture.77 The State Award in New South Wales78 provides for a 50% penalty for the working of ordinary hours on Sundays, as does the federal award operating in respect of the Australian Capital Territory.79 The Federal Northern Territory Award80 provides for a double time penalty generally and a 50% penalty for `clause 14' shops.81 The State Award in Queensland82 provides for double time generally and 50% in respect of independent and exempt shops. In South Australia83 only retail outdoor sales people can work ordinary time on a Sunday, with a 100% penalty. The Tasmanian State Award84 makes no provision for ordinary time work on a Sunday. The State award in Western Australia85 provides for ordinary time work on Sundays only in respect of small retail shops, special retail shops and pharmacies, at double time.
[112] The picture in respect of other States and Territories provides no clear guidance. Support for the 50% penalty supported by the ARA, VECCI and the Commonwealth is to be found in the provisions of the New South Wales and the Australian Capital Territory Awards. However, it is necessary to consider the particular history of those arrangements. In New South Wales, for example, the 1991 decision86 relied on by the ARA was determined by reference to historical circumstances within the regulation of the retail industry in that State since 1937, reflected in decisions of the Industrial Commission of New South Wales. Further, that decision was made in the context of the voluntary working on Sundays by employees engaged at the time Sunday trading became lawful.87 We note that the IRCV has, when considering weekend work in 198888 and 1992,89 distinguished the New South Wales provisions, in part because of the different historical circumstances.
[113] In our view, the mixed picture arising from a consideration of the Sunday penalty provisions in the major retail awards operating in other States and Territories provides limited assistance and does not persuade us to depart from the primary focus on the interim award provisions, as indicated above.
[114] The SDA also relied on a survey of Sunday penalty rates for ordinary hours of work on Sunday of awards simplified by the Commission. Research Officer, Douglas Drew, undertook this survey. Much time was occupied by cross-examination of Mr Drew about his survey. Ultimately, it is not necessary to traverse the issues raised in cross-examination since the survey material is only broadly indicative of relevant award provisions in federal awards generally and Mr Drew provided alternate assessments incorporating allowance for the substantive issues raised in cross-examination. The assessments ultimately provided by Mr Drew suggested, depending on the basis of calculation, that between 69-84% of simplified federal awards provided for double time or greater in respect of the working of ordinary hours on a Sunday.
[115] We do not believe that the survey can be relied upon to establish a "Federal Award standard". We conclude from Mr Drew's survey that double time is the predominant award prescription for Sunday ordinary time work, within awards of the Commission. That conclusion, whilst supporting the SDA case, carries limited weight for two reasons. First, the survey sheds no light on the extent of the proportion of federal award employees enjoying the benefit of that provision. Second, the provisions in each award are the product of their own particular history and can provide little guidance in the absence of material illuminating those histories, including material which identifies whether the rationale for the provision in a particular award and the extent to which the provisions reflect additional compensation of employees in respect of disabilities and/or deterrence of work in ordinary hours on Sundays.
[116] Having considered all of the material, it is our view that the primary focus of our considerations should be on the interim award provisions in respect of the working of ordinary time on Sundays, found in the provisions operating in respect of Exempt Shops for a considerable time.
SECTION 88B(2) OF THE WORKPLACE RELATIONS ACT 1996 (the Act)
[117] In our view, the fixation in the roping-in award of a penalty rate of double time for the working of ordinary hours on a Sunday, consistent with the same provision in respect of Exempt Shops under the interim award, properly balances the matters we are required to have regard to by s.88B(2) of the Act.
[118] Section 88B(2) provides statutory guidance to the Commission in performing its functions under Part VI of the Act. It provides:
"In performing its functions under this Part, the Commission must ensure that a safety net of fair minimum wages and conditions of employment is established and maintained, having regard to the following:
(a) the need to provide fair minimum standards for employees in the context of living standards generally prevailing in the Australian community;
(b) economic factors, including levels of productivity and inflation, and the desirability of attaining a high level of employment;
(c) when adjusting the safety net, the needs of the low paid."
FAIR MINIMUM
[119] As indicated above, we think the primary focus in assessing a fair minimum standard for the penalty for work in ordinary hours on a Sunday, in the context of living standards generally prevailing in the Australian community, is found in the interim award provisions and beyond that, to a lesser degree, in award provisions operating more generally in the Victorian retail sector. In our view, the provisions in other State and Territory awards and in federal awards, considered broadly, provide little assistance. Both the interim award, in respect of Exempt Shop provisions, and the predominance of other retail awards operating in Victoria support the double time standard. Such a provision in the roping-in award will also provide a single consistent standard as between the interim and roping-in award.
[120] The ARA, VECCI and the Commonwealth Government opposed the making of an award, in part on the basis of adverse employment effects they contended would result from the making of a roping-in award in the terms of the interim award, as sought by the SDA. In doing so, they relied on survey material, which was considered in the January 2003 decision.90 For the reasons set out in paragraphs 65 and 75 of that decision, this material provides no assistance in assessing the effect on employment of a penalty rate of 100%, as against the interim rate of 50%. We note that no evidence was brought in the resumed proceedings by the ARA, VECCI or the Commonwealth Government, which provides assistance in assessing any employment effect of the higher Sunday penalty.
[121] In the January 2003 decision,91 the Full Bench accepted that granting the award sought, in full or in part, would increase employment costs of any proposed respondent which is directly affected by the provisions in the interim award and which is not already affording such conditions to employees by way of over-award payment and that there would be an adverse employment effect in some cases. It follows that there may be an adverse employment effect in respect of some respondents associated with an increase in the penalty rate for ordinary time work on Sundays from 50% to 100%. However, in our view any aggregate adverse employment effect would be limited for several reasons:
· According to the ARA and Commonwealth surveys only 30% of respondents to the award trade on Sunday.92
· Those respondents have been afforded greater flexibility in respect to staffing on Sundays, as a result of the ability to require employees to work ordinary hours on Sundays.
· Although no specific information concerning the payment of Sunday rates beyond 50% is available, it is probable that some portion of respondents to the roping-in award pay penalty rates for weekend work already, some of them, possibly, at a level in excess of the interim rate of 50%.93
· An adverse effect experienced by a respondent to the award might be offset by increased employment by another retailer.94
[122] In our view, any aggregate adverse employment effect would be limited and needs to be balanced against the other matters we are required to have regard to by s.88B(2) of the Act.
[123] In the January 2003 decision, we departed from the interim award in the following important respects in order to provide substantial flexibility to employers respondent to the roping-in award in the staffing of their shops and in particular on Sundays in light of present trading patterns within the industry in Victoria:
· the immediate application of the 25% penalty determined by the June 1992 majority decision of a Full Bench of the IRCV, in lieu of the higher rates currently applicable in the interim award as a result of the phased movement to the 25% penalty determined by that majority decision;
· the general provision for the working of ordinary hours on Sundays between 9.00 a.m. and 6.00 p.m.;
· the making of work in ordinary hours on Sundays non-voluntary, in respect of both Exempt and Non-Exempt shops; and
· the removal of the entitlement to a minimum payment in respect of evening and/or Saturday work.
[124] In our view, those departures from the interim award, directed to reflecting the reality that retailing in Victoria is a seven-day a week industry, provide sufficient beneficial conditions for employers and there is no justification for further departure from the interim award in respect of penalty rates for Sunday work in ordinary hours. In the context of the departures from the interim award provisions arising out of the January 2003 decision, we are confident that our decision in respect of Sunday penalties strikes an appropriate balance between fair safety net conditions and proper compensation of employees in respect of the disabilities associated with Sunday work and flexibility for employers to staff their establishments on Sundays, without deterrence of Sunday trade.
[125] The SDA submitted that the final rate for Sunday ordinary time should be given immediate effect. It submitted that there is no reason for a delayed implementation of the final rate because employers have been on notice of the proceedings for five years and have been on notice of the Commission's intention to fix a final rate for ordinary Sunday hours since the decision of 17 January 2003. Further, employers have been afforded a further four months prior to the application of the interim penalty determined in January 2003.
[126] The ARA submitted that the final, if greater than the interim, rate should operate from two months after the final decision in order to allow employer Associations to advise members and to allow respondent employers to prepare for implementation of the final rate, having regard to the practice of preparing rosters well in advance.
[127] These proceedings have been in train for several years and the interim Sunday penalty has provided some substantial phasing-in of the final provision we intend to provide as a penalty payment for the working of ordinary hours on Sunday. As a result, employers respondent to the roping-in award have been on notice, for some time, as to the possibility of the final rate we have determined and have enjoyed the phased introduction of the penalty determined. Accordingly, we do not propose to provide for the phasing-in of our final decision on economic grounds. Nonetheless, we accept the position put by the ARA that some period of prospective operation is warranted, in order that respondents may be advised of the obligations upon them arising from our decision. In our view, a period until 1 January 2004 is sufficient for that purpose. Accordingly, the order arising from this decision shall have effect from the first full pay period on or after 1 January 2004.
[128] The SDA is directed to file in the Commission and serve on the ARAV, VECCI, AIG and the Commonwealth a draft order giving effect to the majority decision. The order will be settled by Raffaelli C.
BY THE COMMISSION:
SENIOR DEPUTY PRESIDENT
Appearances:
S. Moore for the Shop, Distributive and Allied Employees Association.
S. White with M. Weldon for the Australian Retailers Association of Victoria.
E Cole with M. Steele for the Minister for Employment and Workplace Relations.
P. Eberhard for the Victorian Chamber of Commerce and Industry.
Hearing details:
2003.
Melbourne.
August 25, 26 and 27.
Printed by authority of the Commonwealth Government Printer
<Price code G>
11 AW796250 cll.23.2.2, 23.2.3.
15 B144 of 1990, 21 June 1991.
16 B144 of 1990, 21 June 1991, p.12.
23 Shop Employees (State) Award, 27 September 1991, matter nos 89/1073, 89/1175 and 89/1226.
29 See Decision in Print R5283.
30 Decision of Boulton J., Marsh DP and Eggington C 18 June 1992 in Decision D92/0256.
31 See paragraph 88 of PR926620.
34 Exhibits SDA 60, SDA 60A, SDA 60B, SDA 61A.
35 Exhibit SDA 56, Annexure 4.
43 See Weekend Penalties Case, (1947) 58 CAR 610, at 615.
44 See paragraph 88 of PR926620.
45 Hotels, Resorts and Hospitality Industry Award, Print K7601, p. 45 of 68 of internet version tendered by the ARAV.
46 Exhibit ARA 50, paragraph 60.
47 Exhibit SDA 47, p. 4 and Appendix A.
48 Exhibit SDA 47, Appendix A.
49 Exhibit SDA 48, p. 13 and Exhibit SDA 49, p. 5.
53 Based on an English study: La Valle, I., Arthur, S., Millward, C., with Clayden, M. (2002) Happy Families? Atypical Work and its Influence on Family Life. London: The Policy Press. This research finding is consistent with anecdotal evidence of SDA Federal Secretary Sullivan drawn from his experience with members in Exhibit SDA 56, paragraphs 60-62.
63 Exhibit SDA 56, paragraphs 17-19.
66 Employee Relations Act 1992 (Vic) s.172(6).
68 Hotels, Resorts and Hospitality Industry Award, Print K7601, p. 36 of 68 of internet version tendered by the ARAV.
69 Hotels, Resorts and Hospitality Industry Award, Print K7601, p. 36 of 68 of internet version tendered by the ARAV.
70 The minority were in agreement with the majority in respect of Sunday penalties.
71 Decision of Boulton J., Marsh DP and Eggington C. 18 June 1992 in Decision D92/0256, at pages 23 and 24.
75 Exhibit SDA 40, Attachment 1.
76 We note, in respect of agreements entered into by the SDA, which provide for a Sunday penalty for work in ordinary hours below 100%, that such provisions were agreed to in return for substantial increases in weekday rates and provide no guidance to the fixation of a penalty rate in isolation.
77 See Exhibit ARA 50, at paragraph 45 for a summary of such provisions.
78 New South Wales Shop Employees State Award.
79 The Retail and Wholesale Industry Shop Employees ACT Award [AW794740].
80 The Retail, Wholesale and Distributive Employees (NT) Award 2000 [AW794741].
81 Special provisions apply in relation to newspaper, delicatessen, fish, cake, bread, fruit, confectionery, takeaway cooked food, cool drinks shops, milk bars, and to such sub departments within general stores, video hire establishments, and establishments in which food or drink is sold for consumption on the premises where such food or drink is not predominantly ordered and served by table service.
82 Retail Industry Interim Award - State- Queensland 1993.
83 Retail Industry (South Australia) Award 1991.
84 Retail Trades Award Tasmania.
85 The Shop and Warehouse (Wholesale and Retail Establishments) State Award 1997 (WA).
86 Judgment of Fisher P., Glynn J and Sweeney J, 27 September 1991, in Exhibit ARA 56.
88 Majority judgment of Lawrence DP and Williams C in Food Shops Award and others, 22 April 1988 (Exhibit SDA 63), at p. 60.
90 PR926620 at paragraphs 65-75.
92 Op cit, paragraphs 65 and 68.
93 Op cit, paragraph 61 in respect of ACIRRT research in relation to Schedule 1A employees in Victoria generally and paragraph 69, which records the Commonwealth survey response that 62% of respondents afforded a majority of their employees better terms and conditions than Schedule IA.