MODERN AWARDS – 4 yearly review – ss.134, 156 Fair Work Act 2009 – Full Bench – two claims to vary the General Retail Industry Award 2010 (Retail Award) – Australian Retailers Association and Master Grocers Australia (Retail Employers) sought to vary clause 30.3(c) to reduce the rates payable for shiftwork performed on Sundays 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 – 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 – 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 – in the 4 Yearly Review of Modern Awards – Penalty Rates (Hospitality and Retail Sectors decision (the Penalty Rates Decision) [[2017] FWCFB 1001] the Commission made a number of observations about considerations under s.134 of the FW Act – what is ‘necessary’ to achieve the modern awards objective in a particular case is a value judgment – Retail Employers claim – 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 – central issue in these proceedings is whether the existing Sunday shiftwork penalty rates provides a ‘fair and relevant minimum safety net’ – fairness in this context is to be assessed from the perspective of the employees and employers covered by the modern award in question – Full Bench held that the current Sunday shiftwork penalty rates are neither fair nor relevant, they are not ‘proportional to the disability’ – Full Bench 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 – transitional arrangements – Sunday shiftwork penalty rate for full-time and part-time shiftworkers – from 1 November 2018: reduced to 195 per cent; from 1 July 2019: reduced to 190 per cent; from July 2020: reduced to 175 per cent – Sunday shiftwork penalty rate for casual shiftworkers (inclusive of casual loading) – from 1 November 2018: reduced to 220 per cent; from 1 July 2019: reduced to 215 per cent; from 1 July 2020: reduced to 200 per cent – SDA claim – under the Retail Award a casual employee working on a Saturday between 7am and 6pm is paid their casual loading of 25 per cent plus an additional 10 per cent, but a full-time or part-time employee is paid a premium of 25 per cent for working ordinary hours on a Saturday – Full Bench held the current casual rates for Monday to Friday evening work and Saturday work lack logic and merit – casual loadings and penalty rates are separate and distinct forms of compensation for different disabilities – penalty rates compensate for the disability (or disutility) associated with the time at which work is performed – the casual loading is paid to compensate casual employees for the nature of their employment and the fact that they do not receive the range of entitlements provided to full-time and part-time employees, such as annual leave, personal carer’s leave, notice of termination and redundancy benefits – the casual loading is not intended to compensate employees for the disutility of working evenings or on Saturdays – the Full Bench held that merit and logic compel the conclusion that the Saturday penalty rate for casuals working between 7am and 6pm should be increased from 10 per cent to 25 per cent – the position in relation to work performed before 7am and after 6pm on a Saturday is more complicated – contrary to the observation in the Penalty Rates Decision casual employees do not generally receive less for working before 7am or after 6pm on a Saturday than they do for working between 7am and 6pm – outside of the hours of 7am to 6pm casual employees are generally paid at overtime rates – it is appropriate that the casual rates for evening work and Saturday rates be reviewed – Full Bench held the evidence supported a finding that permanent and casual employees experience similar levels of disutility associated with evening (Monday to Friday) and Saturday work – this supported the proposition that the penalty rates for working at those times should be the same for permanent and casual employees – Full Bench agreed that the existing penalty rates for casuals working evenings (Monday to Friday) and on Saturdays are not fair and proportionate to the disability experienced by casual employees working at these times – SDA’s application to vary the Retail Award granted – transitional arrangements – Saturday work: casuals – from 1 November 2018: a casual employee must be paid an additional 15 per cent for all work performed on a Saturday; from 1 October 2019: a casual employee must be paid an additional 20 per cent for all work performed on a Saturday; from 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 – from1 November 2018: an additional 5 per cent will be paid to casuals for hours worked after 6pm; from 1 October 2019: an additional 10 per cent will be paid to casuals for hours worked after 6pm; from 1 March 2020: an additional 15 per cent will be paid to casuals for hours worked after 6pm; from1 October 2020 an additional 20 per cent will be paid to casual for hours worked after 6pm. 4 yearly review of modern awards – General Retail Industry Award 2010
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