Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161

FEDERAL COURT OF AUSTRALIA

Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 File numbers: VID 684 of 2017 VID 685 of 2017

Judges: NORTH, TRACEY, FLICK, JAGOT AND BROMBERG JJ

Date of judgment: 11 October 2017

Catchwords: INDUSTRIAL LAW – ss 134 and 156 of the Fair Work Act 2009 (Cth) (Fair Work Act) – four yearly review of modern awards – judicial review of decision of Full Bench of Fair Work Commission (FWC) determining that penalty rates in various modern awards were inconsistent with the modern awards objective – whether decision affected by jurisdictional error – whether the FWC's task miscarried because it failed to appreciate that "the review" of awards required by s 156 of the Fair Work Act is conditional on there being a material change in circumstances since the conduct of an earlier review – no warrant in the text or its context to confine the meaning of "review" to, or condition the power to vary on, a material change in circumstances – whether the FWC properly understood the nature of the inquiry required under s 134 of the Fair Work Act which specifies the modern awards objective – where FWC must 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 the various factors specified at s 134(1)(a)-(h) – whether specified factors exhaustive and whether FWC misconstrued "relevant" in the phrase "fair and relevant minimum safety net" – whether FWC failed to take into account relative living standards and needs of the low paid as required under s 134(1)(a) – whether the FWC improperly delegated its task of considering the needs of the low paid – whether the FWC's decision was legally unreasonable – the FWC's decision read as a whole reveals no jurisdictional error in its construction or application of s 134 of the Fair Work Act – application dismissed.