On 10 August 2021 the Industrial Registrar issued a Notice of Award Review, giving notice of the Commission's intention to review the Shop Employees (State) Award ("Award") pursuant to s 19 of the Industrial Relations Act 1996 ("Act"). The Notice was issued to the following parties identified by the Registrar, from records kept by the Industrial Registry, as having an interest in the Award:
1. Australian Federation of Employers and Industries ("AFEI");
2. National Union of Workers, New South Wales Branch;
3. Shop Assistants and Warehouse Employees' Federation of Australia, Newcastle and Northern, New South Wales ("Federation");
4. Shop, Distributive and Allied Employees' Association, New South Wales ("SDA");
5. Unions NSW; and
6. United Voice, New South Wales Branch.
The matter was listed for mention on 24 September 2021. Mr J McGrath appeared on behalf of AFEI. Mr B Govind appeared for the SDA and the Federation. Mr McGrath informed me that AFEI may no longer have an interest in the Award, and was taking steps to confirm that. Mr Govind stated that the unions he represented did not anticipate many changes to the Award being required, other than those arising from the State Wage Case 2021. I stood the matter over to 19 October 2021 for mention.
At the mention on 19 October 2021 Mr McGrath confirmed that AFEI no longer had an interest in the Award. Mr Govind stated that the SDA and Federation had an interest in retaining the Award and were working on presenting to the Commission a consent position as to the changes that may be required in the context of the s 19 review. I stood the matter over until 30 November 2021 on the basis that if consent short minutes of order were filed prior to that time, the listing would be vacated and the matter would be determined in Chambers.
On 30 November 2021 Mr M Worsley appeared for the SDA. I had the following exchange with him:
"WORSLEY: Commissioner, the last employer body that had an interest in this matter, which was AFEI, has withdrawn its interest. The union is making enquiries with a few lines of enquiry around whether the awards would still cover the employees. There may be some that we suspect might be covered but we just need some more time to make those enquiries if we can.
COMMISSIONER: If the union comes to a position that there are no employees covered by this award, would it be your expectation that the award would simply be rescinded under s 20 subs 2?
WORSLEY: Commissioner, I don't have instructions on that at this stage. I think there is some resistance to wanting the award rescinded. Because it has such a broad potential application, it would be preferential to keep the award on foot if possible but I understand that if there's no employees covered by it, that may be the only option.
COMMISSIONER: We can, I guess, deal with that when we come to it. If there were no employees covered by the award, my view would be that there is no need to maintain it just in case one might because in that case an appropriate application could be made at the time for an award if necessary, but I don't make any finding about that, of course. What I propose to do is stand the matter over to 1 February 2022 so that you can continue to make your enquiries and we can discuss then what, if any, further steps might be required."
At the mention on 1 February 2022 Mr Govind once again appeared. Mr E Yap appeared for Unions NSW. I had the following exchange with the parties:
"[GOVIND]: So there were two perhaps pockets where there may have been some employees covered notwithstanding [there] are no employer representatives on the party card as it stands. One was the Taronga Zoo and the other one was the retail outlet at the Goulburn Police Academy. We have received confirmation that the award no longer applies at the Taronga Zoo, they have a consent award which now applies there. In relation to the retail outlet at the academy, Ms David has kindly agreed to make some enquiries to determine if there are any employees that remain at that establishment that continue to be covered by the Shop Employees (State) Award.
It may well be, Commissioner, that the response predictably would be, as I understand, that there are no Crown employees covered by the Shop Employees (State) Award which would then bring us to the point where the award may not have any residual application therefore I expect would be rendered obsolete, but just for abundant caution if the Commission could grant us one further mention date to definitively rule out that there are no employees now covered by this award and that would mean that, if the Commission were so minded, if the matter could be stood over to 9am on 2 March, it would allow us to make those final enquiries.
COMMISSIONER: Thank you, Mr Govind. I should ask is there anybody else with an interest in this award on the line?
[YAP]: Commissioner, this is Ed [Yap] from Unions NSW, I have carriage of the matter for the purpose of the State Wage Case and I assume that issues of coverage will be raised by the Chief Commissioner tomorrow as well so I guess I just mention that for the sake of continuity between these two proceedings, but I agree completely with Mr Govind's proposal.
COMMISSIONER: Yes, thank you. Mr Govind, how long do you think it will be before you hear from Ms David?
GOVIND: I don't expect it'll be very long at all. I might hear from her in fact today I would expect. She did confirm fairly quickly that there were no employees covered by the Taronga award and the Crown had withdrawn its interest from the award a little while ago, but she undertook to sort of confirm that with the relevant officer that looks after NSW Police to confirm that the shop award has no further application. So I expect, Commissioner, to answer your question more directly, that it won't be very long, it could be 24-48 hours.
COMMISSIONER: Based on what you've said, if Ms David confirms that the retail outlet at the Goulburn Police Academy does not fall under the award, then the union would agree that the award has become obsolete and therefore is susceptible to being rescinded pursuant to s 20(2) of the Industrial Relations Act. So on that basis what I propose to do is stand the matter over to 2 March 2022 as you've suggested, but subject to a direction that if the association is informed prior to that date that the award does not have any application to the employees at the retail outlet Goulburn Police Academy that you are to notify the Commission forthwith on the basis that an order might then be made for the award to be rescinded. Do you understand?
GOVIND: Yes, I do, that's clear.
COMMISSIONER: Do you have any objection to that course of action?
GOVIND: No, Commissioner, that's fine."
There was no appearance by the SDA or the Federation at the mention on 2 March 2022. Mr Yap informed me that he had expected the SDA to have written to the Commission, as he had seen draft correspondence prepared by Mr Govind. The matter was stood out of the list pending enquiries being made of the Registry and, if necessary, of the SDA.
Enquiries of the Registry failed to locate correspondence from the SDA. As a consequence, on 2 March 2022 I arranged for the Registry to send an email to Mr Govind which stated, in part:
"Commissioner Sloan requests that you inform him in writing, through the Registry, as to whether the SDA has any objection to the Award being rescinded and, if so, the basis of the objection. You are asked to provide your response by 4.00pm on Friday, 4 March 2022. "
On 9 March 2022 the Commission received an email from Mr Govind which stated, in part:
"Further to the Mention before Commissioner Sloan on 1 February in relation to the above matter, we note that Australian Federation of Employers and Industries (AFEI) was the last employer representative that was an active respondent to the Award. AFEI formally withdrew its interest in the Shop Employees (State) Award (the Award) and orders made reflecting the same were made by the Industrial Relations Commission of New South Wales on 29 December 2021. The Notice of Orders made was received on 10 January 2022.
Notwithstanding the removal of AFEI from the party card, the Union was of the view that there could be employees still covered by the Award in particular at retail outlets at Taronga Zoo and/or at the Goulburn Police Academy. Consequently, enquiries were made, with the [sic] Ms David, Industrial Relations Secretary, Department of Premier and Cabinet, whether the Award had residual application at retail outlets at Taronga Zoo and/or at the Goulburn Police Academy. Ms David has confirmed that the Award is not being applied at the retail outlet at the Goulburn Police Academy or at the retail outlet at Taronga Zoo.
While the Union is unable to state definitively that the Award has no application in New South Wales, the Union understands, the Commission has the discretion under s 20 of the Industrial Relations Act, NSW to rescind an Award it finds is obsolete."
There is no employer party expressing an interest in the Award. There is no evidence that the Award applies to any employees. I am satisfied that the Award is obsolete in that there are no longer any employees falling within its coverage. It is appropriate that an order be made that it be rescinded.
[2]
Order
The Shop Employees (State) Award is rescinded pursuant to s 20(2) of the Industrial Relations Act 1996.
Damian Sloan
Commissioner
[3]
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Decision last updated: 10 March 2022