FEDERAL COURT OF AUSTRALIA

Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161

SUMMARY

In accordance with the practice of the Federal Court in cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at the Court’s website. This summary is also available there.

There are two applications before the Court in which the Applicant unions seek judicial review of determinations made by the Fair Work Commission. Those determinations reduced Sunday and holiday penalty rates and other employee entitlements in various awards which cover employees and employers operating in the hospitality and retail industries. In the view of the Fair Work Commission the awards in question were inconsistent with the “modern awards objective” specified by s 134(1) of the Fair Work Act 2009 (Cth) by reason of the rate of those entitlements. The determinations made by the Fair Work Commission were made as part of the four yearly review of awards required by s 156 of the Fair Work Act.

Whatever the unquestionable importance of the determinations made by the Fair Work Commission to a large number of people, the applications for judicial review before the Court must be resolved according to established principles which limit the role of courts in reviewing for administrative error. The Fair Work Commission alone was vested with the responsibility for assessing all relevant matters and reaching all of the conclusions necessary to decide whether or not to make the determinations that it did. The Court’s task does not entail reviewing the correctness of the Fair Work Commission’s conclusions. The Court’s task is restricted to reviewing the process by which the Fair Work Commission arrived at those conclusions to ensure that in performing its statutory task the Fair Work Commission did so free of jurisdictional error. The Court may not enter into the merits of the determinations made by the Fair Work Commission.

Broadly speaking, there are two categories of challenge made in relation to the task performed by the Fair Work Commission. First, the unions contended that the Fair Work Commission’s task miscarried because it failed to appreciate that “the review” of awards required by s 156 of the Fair Work Act is conditional on there being a material change in circumstances since the conduct of an earlier review. That challenge is rejected. There is no warrant in either the text of s 156 or its context to confine the meaning of “review” in the manner contended for by the unions. Second, the unions contended that the Fair Work Commission had not properly understood the nature of the inquiry required under s 134 of the Fair Work Act which specifies the “modern awards objective”. It was contended that the various factors specified at s 134(1)(a)-(h) were exhaustive and that the Fair Work Commission had misconstrued “relevant” in the phrase “fair and relevant minimum safety net”. It was also contended that the Fair Work Commission had failed to take into account relative living standards and the needs of the low paid as required under s 134(1)(a). Further, it was contended that the Fair Work Commission’s decision was legally unreasonable. Each of those contentions is rejected. In the view of the Court, the Fair Work Commission’s decision read as a whole reveals no jurisdictional error in its construction or application of s 134 of the Fair Work Act.

For the reasons given in the Court’s reasons for judgment, each of the applications must be dismissed.

JUSTICES NORTH, TRACEY, FLICK, JAGOT AND BROMBERG

11 OCTOBER 2017

MELBOURNE