National Retail Association v Fair Work Commission [2014] FCAFC 118

FEDERAL COURT OF AUSTRALIA

National Retail Association v Fair Work Commission [2014] FCAFC 118 Citation: National Retail Association v Fair Work Commission [2014] FCAFC 118

Parties: NATIONAL RETAIL ASSOCIATION v FAIR WORK COMMISSION and SHOP, DISTRIBUTIVE & ALLIED EMPLOYEES ASSOCIATION

File number: QUD 140 of 2014

Judges: COLLIER, BROMBERG AND KATZMANN JJ

Date of judgment: 11 September 2014

Catchwords: INDUSTRIAL LAW – judicial review of a decision of the Fair Work Commission (FWC) to vary a modern award pursuant to the transitional review of modern awards required by Item 6 of Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) – whether transitional review of a modern award requires a two-stage decision making process – whether in conducting the transitional review, the FWC was wrong to consider a proposed variation in isolation, rather than review the award as a whole – whether the FWC took into account irrelevant considerations – whether the FWC misunderstood its function by purporting to deal with an application to vary the award rather than conducting a review under Item 6 – whether the FWC failed to act logically and rationally in making factual findings – whether the FWC failed to properly consider whether the award was achieving the "modern awards objective" – no jurisdictional error found – discretion to grant relief discussed – application dismissed

Legislation: Fair Work Act 2009 (Cth) ss 134(1); 138; 156; 156(3); 156(4); 157; 157(2); 284(1); 284(2); 284(3); 284(4); 562; 563; 570(1); 576; 576(2)(d); 577; 581; 582(1); 589(1); 590; 590(2); 591; 593; 612(1); 615(1) Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Schedule 2 (Part 1, Item 4(1)(b)); Schedule 5 (Part 2, Items 6; 6(2); 6(2)(a); 6(2)(b); 6(2A); 6(3) and 6(4)) Federal Court of Australia Act 1976 (Cth) ss 22, 23 Judiciary Act 1903 (Cth) s 39B; 39B(1A)(c) Workplace Relations Act 1996 (Cth) Part 10A; s 576E(1); 576E(3); 576E(4)