| [2021] FWCFB 1833 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards—Award stage—General Retail Industry Award 2020
(AM2017/60)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 7 APRIL 2021 |
4 yearly review of modern awards – award stage – General Retail Industry Award 2020 – substantive issues.
[1] In a decision 1 issued 24 November 2020 we rejected a claim by the Shop, Distributive and Allied Employees Association (SDA) to vary what is now clause 17.2 of the General Retail Industry Award 2020 (the Retail Award 2020) to limit the application of junior rates. In dismissing the SDAs claim, we identified an anomaly concerning the application of junior rates to level 4 classification employees.
[2] To rectify the identified anomaly we decided to vary clause 17.2 of the Retail Award to provide that junior rates only apply to employees classified as levels 1, 2 and 3. In a further decision 2 issued on 4 December 2020 we determined that the operative date of the variation would take effect from 1 May 2021.
[3] A statement 3 issued on 23 February 2021 (February 2021 Statement) published a draft determination giving effect to the 24 November 2020 decision and included a further variation to the redundancy clause of the Retail Award to insert a note that was previously omitted in error.
[4] We provided interested parties the opportunity to comment on the draft determination by 26 March 2021 and stated that in absence of any comments a final variation determination would be issued.
[5] Comments have been received by the Newsagents Association of NSW and ACT (NANA). 4 NANA submits that the draft determination does not take into account the change to the ‘after 6pm Monday to Friday’ penalty rate for casual employees which, at the time of receipt of the submission, was due to increase from 145% to 150% on 1 March 2021.
[6] It submits that the table in clause B.3.4 at item 6 of the draft determination contains the 145% penalty rate, rather than the new rate of 150%. It also submits that the draft determination omits the footnote which, at the time of the submission, appeared below clause B.3.4.
[7] We agree that the draft determination incorrectly omitted the footnote reference at clause B.3.4 of the Retail Award. The footnote stated:
‘1Monday to Friday after 6.00 pm rate from 1 October 2020 to 28 February 2021.’
[8] However, on 1 March 2021 the final transitional penalty rate in the Retail Award for casual employees employed after 6pm Monday to Friday came into effect. A decision was issued by Justice Ross on 25 February 2021 varying the Retail Award to reflect this change. 5 A final determination was issued accordingly, with the effect that the footnote at clause B.3.4 was removed, and the penalty rate at in column 2 of the table appearing in clause B.3.4 of the Retail Award was changed from 145% to 150%.6
[9] We will amend the draft determination to reflect the current penalty rate for casual employees employed after 6pm Monday to Friday, being the final transitional penalty rate.
[10] We have also identified that the draft determination omitted the footnotes which appear in the Retail Award at clauses B.3.2 and B.3.5.
[11] We will amend the draft determination to include these footnotes.
[12] Interested parties are invited to provide any comments in relation to the amended draft determination by 4pm on Friday 16 April 2021. Comments are to be sent to amod@fwc.gov.au.
[13] In the absence of any comments, a final determination will be issued and commence operation on 1 May 2021.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
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4 Newsagents Association of NSW and ACT submission, 24 February 2021.