Australia: Full Federal Court unanimously upholds controversial Sunday penalty rates decision

Last Updated: 16 October 2017
Article by Claudia Lewin

In a decision that has been labelled as "disappointing" by Bill Shorten, the Full Court of the Federal Court of Australia has upheld the Fair Work Commission's controversial decision to cut Sunday penalty rates.

The National Secretary of United Voice, one of the unions behind the appeal, claimed that the penalty rate cuts have already hurt Australians financially. It seems that this hurt will continue at least until the next federal election, with Bill Shorten promising that should Labour be successful, they will pass legislation to restore penalty rates within their first 100 days of government.

The cuts, which are to be phased in over four years and came into effect on 1 July 2017, will continue to apply to full time, part time and casual employees under hospitality, fast food, retail and pharmacy awards.

The Challenge

The Shop, Distributive and Allied Employees Association and United Voice (Unions) launched the appeal against the Fair Work Commission's determinations made on 21 June 2017, under s156(2)(b)(i) of the Fair Work Act 2009 (Cth) (Act).

To overturn the penalty rate cuts, the Unions needed to establish that the Commission's determinations were affected by jurisdictional error. Jurisdictional error is a notoriously ambiguous term that haunts students and lawyers alike, but includes a tribunal incorrectly identifying the issue at hand, ignoring relevant law or relying on irrelevant material.

The Unions argued that the determinations were marred by jurisdictional error on seven grounds:

  1. Ground One: The Commission misconstrued its powers under s156(1) and (2) of the Act by exercising the power to make a determination to vary the awards without being satisfied itself that there had been a material change in circumstances such that the award no longer met the "modern awards objective";
  2. Ground Two: The Commission incorrectly construed section 134 of the Act, leading to it failing to take the criteria listed in s134(1)(a)-(h) (including relative living standards and the needs of the low paid) into account when discharging its duty to ensure that "modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions";
  3. Grounds Three to Six: Grounds three to six challenged the way the Commission treated s134(1)(a), which requires the Commission to take into account the relative living standards and the needs of the low paid.
    1. Ground Three: the Commission wrongly decided it was not necessary to take into account the relative living standards and the needs of the low paid;
    2. Ground Four: the Commission wrongly decided that the relative living standard and needs of the low paid were best addressed by the setting and adjustment of modern award minimum rates of pay;
    3. Ground Five: the Commission misconceived the limits and functions of the annual wage review under Division 3 of Part 2-6 of the Act; and
    4. Ground Six: the Commission failed to take into account the relative living standards and the needs of the low paid.
  1. Ground Seven: In dealing with the s134(1)(a) matter in the way that it did, the Commission made the determination which are plainly unjust or unreasonable.

The Decision

All seven grounds were dismissed.

Ground One

In relation to Ground One, the Full Court held that the Commission was correct to assert that could exercise its powers under s156(2)(b)(i), which allows the Commission to make determinations varying awards after a 4 yearly review, without being convinced that there has been a material change in circumstances since the last review. \

Grounds Two and Three

Regarding Ground Two, the Full Court held that this was not a case where the decision-maker had applied the wrong test, leading to this ground being rejected. Ground Three was rejected because the Full Court, reviewing the Commission's decision, found that the Commission was well aware that it needed to consider the relative living standards and the needs of the low paid, and did so at least 22 times during the written decision.

Ground Four

Ground Four failed because the Full Court found that while the Commission did state that the "needs of the low paid were best addressed by the setting and adjustment of modern award minimum rates of pay", the analysis was in fact more nuanced than this phrase, read alone, would suggest. When the entire determination is read, it becomes apparent that the Commission did consider that some of the negative impact of reducing penalty rates would be offset but phasing the cuts in to line up with wage rises, the Commission did appreciate that reduced penalty rates would have on the relative living standards and needs of the low paid, but did consider.

Grounds Five to Seven

In relation to Ground Five, the Full Court held that the Commission did not misunderstand the limits of the annual wage review. Instead, the Commission made the determinations it did because it saw that, taking s134(1)(a) into account, the cuts ensured that the awards provide a fair and relevant minimum safety net of terms and conditions. Ground Six failed for the same reason and, as the Union's submissions that s134(1)(a) had been incorrectly ignored were dismissed, it was impossible for Ground Seven to be successful.

Conclusion

With the Full Court unanimously rejecting all grounds of the Union's appeal, it seems that any hope affected employees have for avoiding the impact these penalty rate cuts will bring, will only come via legislative change. Change is definitely part of Labour's policy, with opposition leader Bill Shorten determined to kill the decision. This is despite him saying for many months prior to the decision being brought down, that he would 'respect the decision of the independent umpire'.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Kott Gunning is a proud member of

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions