REVIEW OF SHOP AND WAREHOUSE (WHOLESALE AND RETAIL ESTABLISHMENTS) STATE AWARD SCOPE CLAUSE PURSUANT TO S 37D OF THE INDUSTRIAL RELATIONS ACT 1979 (WA)

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

COMMISSION IN COURT SESSION

CITATION : 2024 WAIRC 00831

DELIVERED : FRIDay, 20 SEPTEMBER 2024

FILE NO. : CICS 9 OF 2022

Applicant

AND

(Not applicable)

Respondent

Catchwords : Industrial Law (WA) – Commission’s Own Motion – Shop and Warehouse (Wholesale and Retail Establishments) State Award – s 37D of the Industrial Relations Act 1979 (WA) – Variation to the scope clause of private sector award – New definition of general retail establishments and wholesale establishments – Express application to labour hire businesses and group training organisations – Extra-terriotial effect of Award – Award scope varied

Legislation : Industrial Relations Act 1979 (WA)

Result : Award varied

Representation:

Case(s) referred to in reasons:

Commission’s Own Motion v (Not applicable) [2023] WAIRC 00801; (2023) 103 WAIG 1752

The Shop, Distributive and Allied Employees’ Association of Western Australia v Samuel Grace t/as Chemist Warehouse [2019] WAIRC 00825; (2019) 101 WAIG 343

The Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers v Terry Glover Pty Ltd (1970) 50 WAIG 704

Reasons for Decision

THE COMMISSION IN COURT SESSION:

1         In reasons for decision concerning the review of the Restaurant, Tearoom and Catering Workers’ Award scope clause under s 37D of the Industrial Relations Act 1979 (WA), the Commission in Court Session set out the process for identifying awards suitable for a scope review, and for reviewing that award’s scope: Commission’s Own Motion v (Not applicable) [2023] WAIRC 00801; (2023) 103 WAIG 1752 (CICS 5 Reasons). It also set out the reasons for and intention behind the scope variations which were made to that award.

2         The Shop and Warehouse (Wholesale and Retail Establishments) State Award was another of the awards identified as suitable for scope review, as a result of the process described in the CICS 5 Reasons.

3         The Commission gave notice of the proposed variations to the Award, and of the opportunity to be heard in relation to them, in the Industrial Gazette and on the Commission’s website. It also gave notice to the Hon. Minister for Industrial Relations, UnionsWA, the Chamber of Commerce and Industry of Western Australia (Inc) and the Australian Resources and Energy Employer Association, formerly known as the Mines and Metals Association.

4         It directed that the following parties to the Award and other organisations be given notice:

(a) The Shop, Distributive & Allied Employees’ Association of Western Australia;

(b) The Pharmacy Guild of Western Australia;

(c) Australian Retailers Association; and

(d) twenty-three private sector businesses likely to be employers.

5         The twenty-three private sector businesses were directed to be given notice as being a sample of employers which the Commission considered were reasonably representative of the employers who would be bound by the proposed variations.

6         The proposed variations were published in the Industrial Gazette and on the Commission website.

7         No individual, organisation or employer has advised the Commission of any opposition to the proposed variations. The Minister and UnionsWA each told the Commission they supported the proposed variations.

8         The proposed variations adopt changes drafted by Mr Brendon Entrekin and his colleagues from the Department of Energy, Mines, Industry Regulation and Safety, Private Sector Labour Relations Division on behalf of the Minister. The Commission is grateful to Mr Entrekin and his colleagues for the valuable assistance they have provided to the Commission in this regard.

Proposed variations to the scope clause

9         The Award’s scope provision is currently defined to cover employees who are employed in any of the callings mentioned in the industries carried on by the respondents named in Schedule C of the Award. The scope provision is of the type discussed in The Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers v Terry Glover Pty Ltd (1970) 50 WAIG 704, sometimes referred to as a Glover scope clause whereby, as set out by Burt J at 705-706, neither the provision nor Schedule C referred to identifies the industries to which the Award applies. Rather, the ‘common object’ test to be applied whereby it is by the combined efforts of an employer and the worker to indicate the industry in which they are engaged.

10      The Minister submitted that the scope provision as it currently stands means that determining coverage under the Award is exceptionally complex in circumstances where Schedule C to the Award provided no headings to indicate what types of industries the respondents were engaged in at the time the Award was made. Subsequent extensive research would be required to apply the common object test, which can involve significant uncertainty.

11      The Minister also submitted that the interpretation of the scope provision is further complicated by the fact that the removal of the last-named employer representing an industry or industries from an award’s list of respondents does not alter that scope of the award. This was the case for the community pharmacy industry, whereby the Court in The Shop, Distributive and Allied Employees’ Association of Western Australia v Samuel Grace t/as Chemist Warehouse [2019] WAIRC 00825; (2019) 101 WAIG 343 determined that the Award still covered pharmacy assistants despite the last-named employer representing that industry being removed from the list of respondents in the 1990s: at [187]-[190], [193].

12      Accordingly, the proposed variations to the scope clause seek to better encapsulate the types of work the Award is intended to cover by reference to the definitions of ‘general retail establishments’ and ‘wholesale establishments’ and clarification in relation to labour hire businesses and group training organisations. The definition of ‘general retail establishment’ is partly modelled on the definition of ‘general retail industry’ in the General Retail Industry Award 2020, which is a modern federal award, except for a specific mention of community pharmacies.

13      Further variations are intended to:

(a) ensure that the Award extends to the wholesale industry generally, without limitations as to the types of goods being wholesaled; and

(b) expressly state that the Award does not apply to employees who are covered by another State award to ensure that employers are not subject to more than one award simultaneously in relation to an employee.

Proposed variations to the area clause

14      The Award’s area clause is currently defined to have effect over the State of Western Australia. This restricts the Award’s coverage to the State of Western Australia.

15      The Minister submitted that the current provision presents limitations, including in relation to employment situations where Western Australian employers in the State jurisdiction are employing persons to person work while residing interstate or overseas. The proposed variation to the area clause seeks to ensure that the Award has extra-territorial effect with respect to interstate or overseas employees of Western Australian based State system employers.

16      These purposes are common to the rationale and intent of the variations in the CICS 5 Reasons and the CICS 5 Reasons should be referred to for elaboration about the purpose of the variation.

Conclusion and Order

17      The Commission orders that the Shop and Warehouse (Wholesale and Retail Establishments) State Award be varied in accordance with the Schedule attached to these reasons, with such variations to take effect from the date of the Commission’s order.