Shop, Distributive and Allied Employees Association v National Retail Association (No 2) [2012] FCA 480

Shop, Distributive and Allied Employees Association v National Retail Association (No 2) [2012] FCA 480

There was material before the Vice President reasonably capable of supporting the satisfaction that the varied minimum engagement provision was necessary to achieve the modern awards objective, including material about retail opening hours, student employment, employer willingness to employ students for shorter shifts, and the social inclusion benefits of student workforce participation. The no evidence ground was therefore unavailable. The amended clause did not use age as a criterion and s 153(1), in context and without an extended definition of discrimination, did not proscribe the alleged indirect discrimination. No jurisdictional error was established.

Jurisdiction
Australia
Judgment Date
11 May 2012
Procedural Posture
Judicial Review of Fair Work Australia Decision Varying a Modern Award / Application for Certiorari and Mandamus Dismissed
Outcome
Application dismissed.
Legal Topics
['modern Awards' 'variation of Award' 'casual Employment' 'secondary School Students' 'jurisdictional Error' 'no Evidence Ground' 'indirect Discrimination']
['industrial Law' 'administrative Law' 'anti Discrimination Law'] ['modern Awards' 'variation of Award' 'casual Employment' 'secondary School Students' 'jurisdictional Error' 'no Evidence Ground' 'indirect Discrimination']

Case Brief

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Procedural Posture

Judicial Review of Fair Work Australia Decision Varying a Modern Award / Application for Certiorari and Mandamus Dismissed

Legal Issues

  1. 1 ['Whether Fair Work Australia could be satisfied under s 157(1) that varying the General Retail Industry Award 2010 was necessary to achieve the modern awards objective.' 'Whether the decision to vary the Award was affected by jurisdictional error because the necessary state of satisfaction was not open on the evidence.' 'Whether the amended clause 13.4 discriminated against employees because of age contrary to s 153 of the Act.']

Ratio Decidendi

There was material before the Vice President reasonably capable of supporting the satisfaction that the varied minimum engagement provision was necessary to achieve the modern awards objective, including material about retail opening hours, student employment, employer willingness to employ students for shorter shifts, and the social inclusion benefits of student workforce participation. The no evidence ground was therefore unavailable. The amended clause did not use age as a criterion and s 153(1), in context and without an extended definition of discrimination, did not proscribe the alleged indirect discrimination. No jurisdictional error was established.

Court Disposition

Application dismissed.

Orders

  • ['The application be dismissed.']