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Fair Work Commission resolves ambiguity around casual penalty rates

October 30, 2018

You will recall at the beginning of this month the NRA had reported on the Fair Work Commission’s (FWC) decision to introduce additional penalties for casual employees under the General Retail Industry Award 2010 (the Retail Award).

Last week, the National Retail Association (NRA) intervened in the matter and filed written submissions to the FWC seeking clarification on a number of key issues identified in the decision, and responding to additional arguments by the Shop Distributive and Allied Employees’ Association (SDA). As a result a further hearing was listed for yesterday afternoon, and the NRA appeared on behalf of retailers.

At the hearing, the Full Bench of the FWC provided further clarity on the penalty rate changes, due to take effect on 1 November, after hearing submissions from both the NRA and the SDA.

The Full Bench appeared to take NRA’s view without too much convincing, issuing draft determinations which addressed our concerns on Friday 26 October. The Full Bench elected to not amend the decision and instead let the determinations stand on their own

NRA and other employer associations successfully joined forces to convince the Commission that the ‘correction’ sought by the SDA was no correction at all, but a revisiting of the case, and beyond the power of the Commission.

In consequence, the new penalty rates for shiftworkers and casual employees in the Retail Award will take effect from the first full pay period commencing on or after 1 November 2018.

What penalties were changed as a result of the decision?

The decision on 27 September 2018 introduced a new evening penalty for casual employees performing hours of work after 6pm on a weekday, as well as an increased penalty for “all work performed on a Saturday”.

In addition to these changes, the FWC determined that the penalty rates on a Sunday for permanent and casual shiftworkers would gradually reduce over three tranches.

However, with respect to the increased Saturday penalty, the decision seemingly overlooked the application of overtime penalties and gave rise to the potential for an inadvertent increase in overtime penalties.

Following a separate issue raised by the SDA in relation to the reduction of shiftworker penalties, the NRA filed submissions addressing the SDA’s remarks and seeking further clarification from the Full Bench of the FWC with respect to the increased Saturday penalty.

Our wage summary has been updated and can be downloaded from our Member Portal.

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