Shop, Distributive and Allied Employees Association v National Retail Association (No 2) [2012] FCA 480

FEDERAL COURT OF AUSTRALIA

Shop, Distributive and Allied Employees Association v National Retail Association (No 2) [2012] FCA 480 Citation: Shop, Distributive and Allied Employees Association v National Retail Association (No 2) [2012] FCA 480

Parties: SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION v NATIONAL RETAIL ASSOCIATION and FAIR WORK AUSTRALIA

File number: VID 1064 of 2011

Judge: TRACEY J

Date of judgment: 11 May 2012

Catchwords: INDUSTRIAL LAW – modern award – variation –casual employment – secondary school students – power to vary award discretionary in nature – decision-maker must satisfy itself that variation necessary for achieving modern award objective - challenge to variation – on basis of – jurisdictional error – grounds – not open to decision-maker to vary award - necessary state of satisfaction not reached – variation discriminatory against school aged persons – rendered decision beyond power – findingss – necessary state of satisfaction reached – decision-maker satisfied that objective of Act was not being achieved – variation necessary to rectify deficiency – decision not arbitrary, capricious or irrational – reached bona fide – not unreasonable – "no evidence" ground unavailable – indirect discrimination alleged – ground fails – appeal dismissed

Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) Disability Discrimination Act 1992 (Cth) Fair Work Australia Act 2009 (Cth) ss 153, 156, 157, 562, 569A, 616 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) Sch 5, item 6 Federal Court of Australia Act 1976 (Cth) ss 22, 23 General Retail Industry Award 2010 Sex Discrimination Act 1984 (Cth) Equal Opportunity Act 2010 (Vic) Workplace Relations Act 1996 (Cth) Pt 10A