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



File number:

VID 1064 of 2011



Date of judgment:

11 May 2012


INDUSTRIAL LAW – modern award – variation –casual employment – secondary school students – power to vary award discretionary in nature – decision-maker must satisfy itself that variation necessary for achieving modern award objective - challenge to variation – on basis of – jurisdictional error – grounds – not open to decision-maker to vary award - necessary state of satisfaction not reached – variation discriminatory against school aged persons – rendered decision beyond power – findingss – necessary state of satisfaction reached – decision-maker satisfied that objective of Act was not being achieved – variation necessary to rectify deficiency – decision not arbitrary, capricious or irrational – reached bona fide – not unreasonable – “no evidence” ground unavailable – indirect discrimination alleged – ground fails – appeal dismissed


Administrative Decisions (Judicial Review) Act 1977 (Cth)

Disability Discrimination Act 1992 (Cth)

Fair Work Australia Act 2009 (Cth) ss 153, 156, 157, 562, 569A, 616

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Sch 5, item 6

Federal Court of Australia Act 1976 (Cth) ss 22, 23

General Retail Industry Award 2010

Sex Discrimination Act 1984 (Cth)

Equal Opportunity Act 2010 (Vic)

Workplace Relations Act 1996 (Cth) Pt 10A

Cases cited:

Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 cited

Buck v Bavone (1976) 135 CLR 110 referred to

Commissioner of Police v Ryan (2007) 70 NSWLR 73 cited with approval

Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1999) 93 FCR 317 cited

HBF Health Funds Inc v Minister for Health and Ageing (2006) 149 FCR 291 compared

Helal v McConnell Dowell Constructors (Aust) Pty Ltd (2010) 193 FCR 213 compared

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 discussed

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 discussed

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 cited

R v Connell; ex parte Hetton Bellbird Collieries Pty Ltd (1944) 69 CLR 407 discussed

Waters v Public Transport Corporation (1991) 173 CLR 349 applied

Aronson, Dyer and Groves, Judicial Review of Administrative Action (Fourth Edition)

Date of hearing:

1 February 2012







Number of paragraphs:


Counsel for the Applicant:

Mr W Friend SC and Mr C Dowling

Solicitor for the Applicant:

A J Macken & Co

Counsel for the First Respondent:

Ms C Symons

Solicitor for the First Respondent:

National Retail Association

Counsel for the Intervenor:

Mr R Cameron

Solicitor for the Intervenor:

Director, Private Sector Industrial Relations and Legal Unit, Department of Business and Innovation




VID 1064 of 2011






First Respondent


Second Respondent




11 may 2012




1.     The application be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.




VID 1064 of 2011






First Respondent


Second Respondent




11 may 2012




1    For many years senior secondary school students made pocket money by working for an hour or two after school on weekdays in shops and other retail outlets. This practice was brought to an end (temporarily) upon the commencement of the General Retail Industry Award 2010 (“the Award”) which fixed a minimum of three hours as the period during which casual employees might be engaged. Fair Work Australia (“FWA”) reconsidered this restriction when complaints were made that employers could no longer engage such students because the period between the end of the school day and the closing of shops was less than three hours.

2    As a result of the reconsideration FWA varied the Award so as to ease the restriction. School students could again be employed on a casual basis for periods of less than three hours per day subject to certain conditions.

3    This variation was opposed by the applicant (“the SDA”). It now seeks to challenge, in judicial review proceedings, FWA’s decision to vary the Award. It alleges that the variation decision was affected by jurisdictional error and should be quashed.

4    I have concluded that FWA has not erred in the manner alleged and that no basis for interfering with its decision has been established.


5    The Award is a “modern award”. Such awards were originally made by a Full Bench of the Australian Industrial Relations Commission under Part 10A of the Workplace Relations Act 1996 (Cth). They are now subject to a review every four years by a Full Bench of the FWA: see ss 156 and 616 of the Fair Work Australia Act 2009 (Cth) (“the Act”).

6    During the four year period limited scope exists for variation of such Awards. That scope is prescribed by s 157(1) of the Act. It provides that:

“157(1)            FWA may:

(a)    make a determination varying a modern award, otherwise than to vary modern award minimum wages; or

(b)    …; or

(c)    …;

if FWA is satisfied that making the determination or modern award outside the system of 4 yearly reviews of modern awards is necessary to achieve the modern awards objective.”

The provision for four yearly reviews was modified in the transitional provisions such that the initial review will take place after the first two years of operation of the Award: see Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), Schedule 5, item 6.

7    The “modern awards objective” is framed as an obligation, imposed on FWA by s 134(1) of the Act, to “ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions”, taking into account a range of considerations, which include “relative living standards and the needs of the low paid”, “the need to promote social inclusion through increased workforce participation”, “the need to promote flexible modern work practices and the efficient and productive performance of work” and “the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden.”

8    Clause 13.4 of the original Award provided that the “minimum daily engagement of a casual is three hours”.

9    The respondent (“the NRA”) applied to FWA seeking a qualification of Clause 13.4 so as to permit employers to engage secondary school students on school days for periods of less than three hours. That application, although not in the terms in which it was sought, was granted by Vice President Watson.

10    Clause 13.4, in its amended form, read:

“13.4    The minimum daily engagement of a casual is three hours, provided that the minimum engagement period for an employee will be one hour and 30 minutes if all of the following circumstances apply:

(a)    the employee is a full-time secondary school student; and

(b)    the employee is engaged to work between the hours of 3.00 pm and 6.30 pm on a day which they are required to attend school; and

(c)    the employee agrees to work, and a parent or guardian of the employee agrees to allow the employee to work, a shorter period than three hours; and

(d)    employment for a longer period than the period of the engagement is not possible either because of the operational requirements of the employer or the unavailability of the employee.” (Emphasis added).

11    The SDA lodged an appeal to a Full Bench of FWA against the making of the variation. The Full Bench was not persuaded that the primary decision was affected by error. It dismissed the appeal: see [2011] FWAFB 6251.

12    It is convenient to note at this point that this was not the first occasion on which Vice President Watson had considered an application to vary Clause 13.4. On 9 July 2010 he had rejected an earlier application by the NRA and other employer organisations to vary the clause by fixing a minimum engagement period of two hours except for secondary students who could be engaged for a minimum of one and a half hours on school days: see [2010] FWA 5068. In the course of hearing that application Vice President Watson heard evidence from two secondary school students from Terang Secondary College. Those students gave evidence that they had lost their jobs as a result of the introduction of the three hour minimum engagement requirement because they were only available to work at the local district co-operative from about 4:00 pm until the store closed at 5:30 pm. Appeals to a Full Bench were dismissed: see [2010] FWAFB 7838.


13    The SDA now applies to this Court for judicial review of FWA’s decision. It was common ground that, because the Full Bench had dismissed an appeal from the original decision to vary the Award, any error warranting the granting of relief had to be found in Vice President Watson’s decision.

14    The SDA sought the issue of a writ of certiorari to quash the decision and a writ of mandamus directing FWA to hear and determine the NRA’s application according to law.

15    This Court has jurisdiction in relation to any matter arising under the Act: see s 562. Its power to grant the writs of certiorari and mandamus is conferred by ss 22 and 23 of the Federal Court of Australia Act 1976 (Cth).

16    The SDA accepted that it was necessary for it to establish that the primary decision had been affected by one or more jurisdictional errors. See Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1999) 93 FCR 317 at 339-344 (per Wilcox and Madgwick JJ).

17    The SDA submitted that two such errors had been made. Those errors were that:

    The Vice President reached a state of satisfaction that it was necessary for the modern award to be varied in circumstances where it was simply not open for him to do so on the evidence; and

    The variation was in terms discriminatory against school aged persons and therefore contravened s 153 of the Act. This contravention rendered the decision “beyond the power of FWA to make”.

18    The NRA contended that no jurisdictional error had been made. It was supported in this submission by the Minister for Employment and Industrial Relations for the State of Victoria who intervened pursuant to s 569A of the Act.

19    The FWA filed a submitting appearance.


20    The Vice President summarised the evidence on which he based his decision to vary Clause 13.4 as follows:

“[18]    On the evidence before me I am satisfied that retail establishments across Australia have a variety of opening hours and that many, especially in regional areas, do not open beyond 5.30pm or 6.00pm on week days. I am also satisfied that many school students currently in employment find that the existing three hour minimum period of engagement is important to their decision to undertake part time employment after school because the cost and inconvenience of attending work is compensated for by payment of at least the minimum period of engagement. A shorter period may mean that employment is no longer viable in their circumstances.

[19]    I am satisfied that if shorter periods of engagement are available then employers may be more prepared to hire school students after school. It is difficult to assess the extent of this factor or the circumstances in which this may arise as the evidence before me does not deal with these issues. It appears that it may arise where opening hours are limited and the existing minimum engagement period precludes employment for the students during their period of availability. It may also arise where longer opening hours operate but there is a desire to engage junior employees to work for short periods to undertake specific tasks or assist at busy periods. In other words it is not clear whether future employment provided if the application is granted would be limited to circumstances where employment of school students for three hours is not currently possible or would be utilised in substitution for other existing arrangements. It is therefore not clear what impact may flow to other employees from any such change.

[20]    The retail industry is often the source of an employee’s first job and can therefore play an important role in the transition from education to work - even though the employee ultimately pursues a career in other industries. The evidence establishes that there has been a growth in the proportion of secondary students undertaking part-time employment over the past 30 years and that a substantial proportion of these students are employed in the retail industry. The proportion of students in employment is currently approximately 37%, almost half of whom are employed in the retail sector. The proportion of school children in employment is higher than in most OECD countries. Youth unemployment in Australia is also relatively high - often more than double the general rate of unemployment. The youth unemployment rate has been in excess of 15% for much of 2010-2011.

[21]    The House of Representatives Standing Committee Report records that there is a general consensus that young people’s participation in some form of work while at school holds an inherent value. The report states that combining school and work can:

    Enhance a student’s confidence and self esteem;

    Contribute to their financial well-being;

    Facilitate the development of social networks;

    Allow students to gain useful knowledge and independence and exercise greater responsibility and self-reliance;

    Instil a work ethic and attitude, and

    Enable students to develop work and organisational skills, including time management skills.

[22]    The report also acknowledges that the extent of work should be limited and an appropriate balance struck between work and educational commitments. At some point as work demands increase work can start to become an impediment to school performance.

[23]    In a response to the Victorian discussion paper on youth transition system, the Brotherhood of St Laurence expressed the view that more attention should be paid to the needs of students who undertake paid work and study. It said:

‘Part-time or casual work can have considerable benefits for students, including independence, confidence and work skills, and new networks; and these may assist them in getting new work in the future. However students in rural areas, from low socio-economic status communities or from refugee or migrant backgrounds may be less able to access part-time jobs. For those students who would benefit from part-time work while studying full time, but who lack access to such opportunities, processes are required through community, business and schools partnerships to enable the development of safe, meaningful employment opportunities that benefit young people.’

21    The Vice President then turned to the question of whether a variation was necessary to achieve the modern awards objective. He explained his reasons for giving an affirmative answer to this question in the following passages of his reasons:

[37]    It is necessary to consider the evidence and circumstances of this application against the statutory test set out above. This application is quite different to the application subject to earlier proceedings as it is confined to circumstances after school on weekdays for full time secondary school students. It does not seek a general change to the minimum engagement period for casuals.

[38]    The retail sector is the most important industry for school students because it provides a large proportion of employment opportunities for this class of employees. It is clear that the employment opportunities in the industry provide significant benefits for the employees, not only in an immediate sense, but also by equipping them with skills and networks to assist in obtaining, and succeeding in, employment in the future.

[39]    While the level of employment of full time students in Australia is high by international comparisons, there is no reason to suggest that it should not be higher. Indeed there is some suggestion in the evidence that the current employment opportunities are gained more by students from stable and well off backgrounds than other groups in the community. Members of other groups, such as those from low socio-economic, regional, migrant or refugee backgrounds are likely to benefit far more from employment opportunities while completing full time education.

[40]    The evidence suggests that school students who work at present value the current three hour minimum engagement period and may not find employment viable if this engagement period were reduced. There is a long history of minimum engagement periods for part time and casual employees providing protection for employees from employer expectations of working short periods where the cost and inconvenience of attending the workplace outweighs the benefits received from the engagement. The minimum engagement period does not preclude shorter periods of work - provided payment for the minimum period is made.

[41]    Hence different groups of persons are likely to be affected in different ways if this application were granted. One group, comprising existing employees and those in similar circumstances, may have their employment rendered unviable and may effectively be deprived of the opportunity to work if a reduced period of engagement is able to be offered to them. Another group, those who are not able to secure jobs at the moment, may be able to obtain valuable employment if more opportunities become available.

22    The Vice President summarised the evidence which had been led by employers in support of the variation. He found that this evidence “was very brief and indirect.” It did not go further than establishing a desire, on the part of employers, to have more flexible engagement practices. That, he found, did not render the variation to be necessary.

23    The Vice President was concerned that a mere unqualified reduction of the minimum term of engagement from three to two hours might work to the advantage of some school students but to the disadvantage of others who might be available to work for three or more hours. He then explained why he considered that a modified version of the employer proposal should be adopted. He said:

[48]    I consider that a modified variation to the Award should be made which confines the proposed exception to the three hour minimum engagement period to circumstances where a longer period of employment is not possible. This will ensure that where a longer period is possible the three hour minimum will continue to apply and school students will continue to have the benefit of such an engagement. Where only a shorter period is possible, then a shorter period of engagement can be utilised and employment that would not otherwise be available may thereby become available. Those who can benefit from such employment will be able to take up the anticipated enhanced employment opportunities. Those who do may well be students in different circumstances to many of those who are currently engaged in employment after school and require the benefits of a three hour engagement. Given the circumstances in which the modified clause will operate I consider that the benefits of promoting social inclusion arising from the variation mean that the change is necessary to achieve the modern awards objective.

[49]    I envisage that my intention could be achieved by way of additional conditions on the operation of the exception to the three hour minimum. I publish a draft determination together with this decision. Those wishing to comment on the draft may do so in writing within seven days of the handing down of this decision. I will finalise the variation after considering the additional submissions.”

The variation which he made was in accordance with the draft.


24    The SDA submitted that “it was simply not open” to the Vice President, on the evidence before him, to reach the state of satisfaction which s 157(1) of the Act required of him as a precondition for the making of a determination. It argued the power conferred on FWA by s 157(1) of the Act could not be exercised unless it was first established that the modern awards objective was not being achieved and that it was satisfied that the variation was “necessary” in order to rectify the deficiency. A variation was either necessary or it was not. There was no evidence, it was contended, before FWA upon which it could be satisfied that any variation was necessary to achieve the relevant objective. In particular, the SDA contended that there was no evidence that Clause 13.4 impeded any student from working part time.

25    The SDA placed particular reliance on the observations of Latham CJ in R v Connell; ex parte Hetton Bellbird Collieries Pty Ltd (1944) 69 CLR 407 at 430 where his Honour said that:

“Thus, where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist. A person acting under a statutory power cannot confer power upon himself by misconstruing the statute which is the source of his power.”

26    If the decision maker’s state of satisfaction was founded on reasons which were “arbitrary, capricious [or] irrational” or not reached bona fide, his Honour held, the necessary opinion could not be said to exist.

27    These observations have proved to be the foundation for the development of principles which are to be applied where legislation conditions the exercise of power upon a jurisdictional fact and that jurisdictional fact is the decision maker’s state of satisfaction about particular matters: see Commissioner of Police v Ryan (2007) 70 NSWLR 73 at 85 (per Basten JA). In addition to recognising a “no evidence” ground, Connell has led to “illogicality” and “irrationality” emerging as grounds for judicial view of administrative decisions. The requirements that such decisions must be made bona fides and not be unreasonable in the Wednesbury sense have also since been developed and refined.

28    In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-6 Brennan CJ, Toohey, McHugh and Gummow JJ reviewed many of the authorities which had been decided after Connell. Their Honours held that, in Buck v Bavone (1976) 135 CLR 110 at 118-9, Gibbs J had accurately explained the position reached at common law prior to the enactment of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Gibbs J had said that:

“It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.” (Emphasis added)

29    It is not necessary to explore all of these bases for judicial intervention in this case because the SDA has prosecuted its application on the ground of an alleged absence of supportive evidence. It is, however, appropriate to note that a decision made without any evidentiary support may well, for that reason, be considered also to be illogical, irrational or unreasonable.

30    It is to be borne in mind that the relevant pre-condition under s 157(1) is FWA’s state of satisfaction as to certain matters. Those are matters about which FWA must form an opinion based on the material before it. The SDA’s application must, therefore, confront the considerable obstacle to which Gibbs J adverted in Buck v Bavone when seeking to make good this ground.

31    The “no evidence” ground is available where legislation imposes a pre-condition to the exercise of jurisdiction and it is alleged that there was no evidence before the decision-maker which justified a finding that the pre-condition existed. The necessary evidence could be either direct or found in material which permitted the decision-maker reasonably to infer that the condition existed: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 21 (per Gummow and Hayne JJ). The ground will not be made out unless it is established that there was “no evidence, or other material, to justify the findings of fact made”: see Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at 587 (per Weinberg J). The point is put more bluntly in Aronson, Dyer and Groves, “Judicial Review of Administrative Action” (Fourth Edition) at 259 where the learned authors say that the “no evidence” ground “cuts out when even a skerrick of evidence appears.”

32    In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ explored the development of “illogicality”, “irrationality” and “unreasonableness” as grounds of judicial review and the circumstances in which they might give rise to jurisdictional error. Their Honours stressed the need for judicial restraint when reviewing decisions of tribunals. Mere disagreement, even “emphatic disagreement”, with the decision under review must not be equated with irrationality or illogicality. Their Honours went on (at 648):

“… the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”

33    The correct approach, their Honours said, was “to ask whether it was open to the [t]ribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it.” If, on that material, “a logical or rational decision maker could have come to the same conclusion as the [t]ribunal” a claim of jurisdictional error will not be made out.

34    In Ryan (at 87) Basten JA (with whom Spigelman CJ and Santow JA agreed) held that a similar approach should be adopted where it is alleged that there is no evidence which supports a decision-maker’s determination that he or she is satisfied that a particular state of affairs exists. In such cases the appropriate question for the reviewing court is “whether there was any material before the [tribunal] which was reasonably capable of supporting a state of satisfaction in respect of the relevant pre-conditions.”

35    The statutory foundation for the exercise of FWA’s power to vary modern awards is to be found in s 157(1) of the Act. The power is discretionary in nature. Its exercise is conditioned upon FWA being satisfied that the variation is “necessary” in order “to achieve the modern awards objective.” That objective is very broadly expressed: FWA must “provide a fair and relevant minimum safety net of terms and conditions” which govern employment in various industries. In determining appropriate terms and conditions regard must be had to matters such as the promotion of social inclusion through increased workforce participation and the need to promote flexible working practices.

36    The sub-section also introduced a temporal requirement. FWA must be satisfied that it is necessary to vary the award at a time falling between the prescribed periodic reviews.

37    The question under this ground then becomes whether there was material before the Vice President upon which he could reasonably be satisfied that a variation to the Award was necessary, at the time at which it was made, in order to achieve the statutory objective.

38    The Vice President declared himself satisfied “that the benefits of promoting social inclusion arising from the variation mean that the change is necessary to achieve the modern awards objective” (see above at [23]).

39    The Vice President had earlier summarised the evidence which led him to this conclusion. That evidence is set out above at [20]. The summary included the following findings:

    About 37% of secondary school students engage in paid employment.

    Almost half of these students are employed in the retail sector.

    Many retail establishments, especially in regional areas, do not open beyond 5:30 pm or 6:00 pm on week days.

    The three hour minimum engagement period operated to the benefit of some secondary students and was not a barrier to their participation in part time employment.

    The minimum engagement period did limit the employment opportunities available to some other secondary students who lived in rural areas or were members of low socio-economic groups.

    Engagement in limited part time work was beneficial for secondary students in a number of ways including facilitation of the transition from school to the workforce.

40    The evidence on which these findings were based included the report of the House of Representatives Standing Committee and the discussion paper prepared by the Brotherhood of Saint Laurence to which reference is made in the Vice President’s reasons. The evidence also included:

    A survey conducted by the NRA in which 70% of the members surveyed said that a reduction in the three hour minimum shift requirement would make it easier for them to employ students after school and 64% said that they would employ more school age students if the minimum time was reduced to one and a half hours.

    An Australian Retailers Association survey in 2010 which found that the three hour minimum requirement operated as a substantial inhibition on the employment of secondary school students on week days.

    A discussion paper prepared by the Australian Industry Group in 2010 entitled “Stronger Futures for all Young Victorians” which dealt with the extent of workforce participation by secondary school students and the benefits that flowed to those students and the community from their participation.

41    The SDA called evidence which challenged the methodology and reliability of the NRA and ARA surveys.

42    In this Court it pointed to the level of generality at which survey conclusions were pitched and submitted that there was no evidence before the Vice President that the operation of the unmodified Clause 13.4 had impeded any student from working part time.

43    Whilst it is true that the evidence given by the students in the course of the hearing of the first (unsuccessful) application to vary Clause 13.4 (see above at [12]) was not re-led in support of the second application, the Full Bench noted ([2011] FWAFB 6251 at [25]) that the Vice President had before him some of the material “directly touching upon the matter that was tendered in the earlier general application, and was considered by the earlier Full Bench.” This material was referred to in the reasons for decision of Vice President Watson and the reasons of the Full Bench both of which dealt extensively with the evidence of the rural students.

44    Was this material reasonably capable of supporting Vice President Watson’s state of satisfaction that it was necessary to vary the Award in the way that he did at the time at which he did? In my view the answer to that question must be: Yes. The evidence established that many secondary school students in Australia wished to and did undertake paid employment in the retail sector after school on weekdays. The three hour minimum engagement requirement did not impede many of them from undertaking such employment. For others, this was a barrier, particularly in areas where retail outlets closed for business less than three hours after the school day had concluded. Many employers had said that they were prepared to engage students who were available for less than three hours should the restriction be varied. Such employment was considered to be beneficial for a variety of reasons including assisting in a smooth transition of students from school to the workforce and affording students, especially those in rural areas and from lower socio economic groups, the opportunity to participate in the workforce. Such considerations were conducive to the achievement of the modern awards objective.

45    This evidence and material, standing alone, was sufficient to support the Vice President’s conclusion. Once this point is reached it is clear that the no evidence ground cannot be made out. The conclusion, however, derives further support from the evidence, heard on the earlier application, that some secondary school students in rural Victoria had lost their after school jobs once the three hour restriction had come into force because their workplaces closed for the day less than three hours after school finished.

46    In reaching my conclusion on this ground I have not overlooked the SDA’s subsidiary contention that a distinction must be drawn between that which is necessary and that which is desirable. That which is necessary must be done. That which is desirable does not carry the same imperative for action. Whilst this distinction may be accepted it must also be acknowledged that reasonable minds may differ as to whether particular action is necessary or merely desirable. It was open to the Vice President to form the opinion that a variation was necessary.

47    The first ground has not been made out.


48    Section 153(1) of the Act stipulates that a modern award “must not include terms that discriminate against an employee because of, or for reasons including, the employee’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”

49    Certain exceptions are provided to this proscription in the two succeeding sub-sections. They read:

“(2)    A term of a modern award does not discriminate against an employee:

(a)    if the reason for the discrimination is inherent requirements of the particular position held by the employee; or

(b)    merely because it discriminates, in relation to employment of the employee as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:

(i)    in good faith; and

(ii)    to avoid injury to the religious susceptibilities of adherents of that religion or creed.

(3)    A term of a modern award does not discriminate against an employee merely because it provides for minimum wages for:

(a)    all junior employees, or a class of junior employees; or

(b)    all employees with a disability, or a class of employees with a disability; or

(c)    all employees to whom training arrangements apply, or a class of employees to whom training arrangements apply.”

50    In its amended form Clause 13.4 operates beneficially in respect of those students whom it was intended to assist, but it could be said to discriminate against those who were rendered less attractive to potential employers because they could not be engaged for less than three hours.

51    The SDA accepted that Clause 13.4, in its amended form, did not, in terms, adopt age as a criterion for discrimination between persons whose employment was governed by the award. It contended, however, that the clause, whilst being ‘facially neutral’ did discriminate, as a practical matter, on that basis. This was because secondary school students were, overwhelmingly, teenagers and they were the only group afforded the opportunity of working for less than three hours on weekdays. This, it was said, constituted a form of indirect discrimination. It therefore fell within the proscription contained in s 153(1) of the Act.

52    The Act does not define the word “discriminate” or the words “discriminate against”. The ordinary and natural meaning of the word ‘discriminate’ connotes the making of distinctions: cf HBF Health Funds Inc v Minister for Health and Ageing (2006) 149 FCR 291 at 295. In the context of s 153(1) this involves the making of distinctions between employees whose employment is regulated by the Award.

53    It is next to be noted that not all discrimination is proscribed. What is proscribed is discrimination against an employee. That means the making of an adverse distinction between employees: cf Helal v McConnell Dowell Constructors (Aust) Pty Ltd (2010) 193 FCR 213 at [24] (per Ryan J). The adverse distinction must be drawn for one of the reasons, including age, which appear in the sub-section.

54    As can be seen, the proscribed reasons for adverse discrimination are those which are commonly dealt with in Federal and State anti-discrimination legislation. Typically, such legislation defines discrimination so that it covers both direct and indirect discrimination: see for example the Disability Discrimination Act 1992 (Cth) ss 4, 5 and 6; Sex Discrimination Act 1984 (Cth) ss 5, 6, 7 and 7B; Equal Opportunity Act 2010 (Vic) ss 8 and 9. The reason that this was considered necessary is, as Dawson and Toohey JJ pointed out in Waters v Public Transport Corporation (1991) 173 CLR 349 at 392-3, because the proscription of discrimination, without more, is not apt to pick up “facially neutral” discrimination which is otherwise known as indirect discrimination. Indirect discrimination, as defined in anti-discrimination legislation requires the imposition of a requirement or condition which does not, in terms, distinguish between people on prohibited grounds but which, in practice, adversely impacts on such people. It must be established that the requirement or condition is one with which a substantially higher proportion of persons who are not aggrieved by its operation are able to comply, that the requirement or condition is not reasonable and that the aggrieved person is not able to comply with it.

55    No attempt has been made in the Act to provide an extended definition of the term “discrimination”.

56    It would be highly unlikely that the Parliament intended that s 153(1) could be contravened by indirect discrimination. Awards typically contain many provisions that discriminate between employees. Wage rates, for example, are usually fixed by reference to criteria such as length of service and qualifications held. It is unlikely that Parliament intended that such provisions could be impugned on the ground that they indirectly discriminated on the grounds of age because younger employees as a group would not have had the length of service, or the time to obtain the requisite qualifications, in order to qualify for placement in the higher classifications which attract higher wages.

57    It is also to be observed that the exceptions to the general rule contained in s 153(1), which are to be found in sub-sections (2) and (3), all cover terms which would meet the description of direct discrimination. A modern award may, for example, discriminate on the ground of age by expressly providing for minimum wages for young employees of a certain age or on the ground of disability when fixing wage rates for such employees: see s 153(3).

58    In this context it may be observed that Clause 13.4, in its unamended form, would also be susceptible to challenge under s 153(1) if the sub-section covered indirect discrimination. This is because it could be said to discriminate against any secondary school student who wanted to work after school but was not available for three hours or more or where the prospective employer closed for business less than three hours after the student was able to commence work on school days.

59    The second ground also fails.


60    The application must be dismissed.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.


Dated:    11 May 2012