Australia: Management within management - Employment law issues for fashion retail concessions

Fashion Sector E-magazine
Last Updated: 2 May 2013
Article by Katie Sweatman

Employment issues arising out of concessions stores

The operation of a concessions store within a department store can often be an attractive alternative to opening a stand-alone retail store for market entrants or retailers seeking to promote their brand in an established retail location.

However, operating what is effectively a "store within a store" can create some interesting challenges around the management of staff, where the retailer as concession holder does not maintain full control over the environment in which staff work and the way in which staff perform their work.


In most cases, the concession holder will hire its own staff to operate the concession store, whether this is an internal business decision or a requirement imposed by the department store under the concession agreement.

Notwithstanding that staff are direct employees of the retailer, there remains a strong element of control and influence exercised by a department store over the presence of employees of the retailer, which will affect the ability of the retailer to effectively manage employment relations. this may go so far as a department store requiring that final approval be provided by it to any person being employed within its premises.

Notwithstanding that staff are direct employees of the retailer, there remains a strong element of control and influence exercised by a department store over the presence of employees of the retailer, which will affect the ability of the retailer to effectively manage employment relations. this may go so far as a department store requiring that final approval be provided by it to any person being employed within its premises.

This control over who is employed by the retailer, including where the department store requires staff of a particular look can create issues around direct or indirect discrimination. In australia, protected attributes around which an employee or prospective employee may not be discriminated include (but are by no means limited to) gender, age, race, pregnancy and, in a number of states, physical appearance.

While a directive that a prospective or current employee does not fit a desired look may come from a department store, any final decision not to employ a particular employee will rest with the retailer employer, and any proven allegation of discrimination will render the retailer employer liable in respect of that discrimination.

In the day-to-day management of staff employed in a concession store, the department store will generally require that concessions store staff comply with policies and procedures of the department store. It is important that the retailers' own policies and procedures with which staff are expected to comply are not inconsistent with the policies and procedures of the department store.

Where inconsistent requirements operate under competing policy and procedure documents, the retailer risks a situation whereby a particular policy or procedure may not be able to be relied upon in circumstances where non-compliance raises disciplinary matters.


As the employer of staff engaged in a concession store, the retailer has responsibility under workplace health and safety legislation to eliminate risks to the health and safety of concessions store staff, so far as is reasonably practicable, or if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

In a small working area within a broader department store, it is important to ensure that concessions staff have proper access to first aid facilities and other safety devices.

The concessions store retailer is not, however, alone in this responsibility. The department store itself will retain also a particular obligation to eliminate any risks to the health and safety of all workers within its store, including the staff of concessions holders that are not their own employees.

Department stores will generally have established policies and procedures around the safe performance of work as well as procedures around consultation to ensure the ongoing identification and management of health and safety risks and hazards.

Australian workplace health and safety legislation varies from state to state, but is gradually becoming harmonised under uniform adopted legislation. Small, but important differences between each state do make it important for advice to be obtained in the particular state in which a concessions store is to be established to ensure full compliance with risk management and consultation obligations.


Under its concession agreements, a department store will generally reserve the right to assert that a particular person is not welcome to work in its premises.

Under Australia's primary workplace relations legislation, the Fair Work Act 2009, many employees are eligible to apply to the Fair Work Commission for a remedy if a dismissal is unfair, that is, a dismissal that is harsh, unjust or unreasonable. Employees will be eligible to make an unfair dismissal claim after completing a minimum employment period of six months (12 months for a business with less than 15 employees), if they earn up to a prescribed salary threshold (currently AU$123,300, indexed annually) or if they are covered by a workplace agreement or Tribunal made order setting minimum conditions (known as an award).

In determining whether a dismissal is harsh, unjust or unreasonable, the Fair Work Commission will have regard to factors including, but not limited to:

  • whether the employer can evidence that there was a valid reason for the dismissal related to the employee's capacity or conduct
  • whether the person was given an opportunity to respond to the reason for dismissal and
  • the size of the employer, that is, whether the employer should have sufficient human resource capabilities to follow a thorough process based around procedural fairness.

These considerations become particularly relevant in a case in which an employee is excluded or otherwise banned from a particular department store following allegations of misconduct. While a department store will generally be empowered to exclude an employee at its discretion, the retailer employer must undertake its own investigations, provide the employee with a full opportunity to respond and consider whether termination of employment is appropriate before proceeding to do so on the basis of allegations presented by the department store alone.


The operation of a concessions store is a great opportunity for a retailer and the department store granting the concession to leverage off each other for the mutual benefit of each business.

Maintaining a strong working relationship with the department store and working closely for the seamless integration of concessions store staff with the staff and environs of the department store provides the best opportunity for a smooth and long standing working relationship.

© DLA Piper

This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not used as, a substitute for taking legal advice in any specific situation. DLA Piper Australia will accept no responsibility for any actions taken or not taken on the basis of this publication.

DLA Piper Australia is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities. For further information, please refer to

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