Shop Employees (State) Award [2022] NSWIRComm 1012

decision

1. 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.
2. 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.
3. 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.
4. 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with him: "WORSLEY: Commissioner, the last employer body that had an interest in this matter, which was AFEI, has withdrawn its interest.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position that there are no employees covered by this award, would it be your expectation that the award would simply be rescinded under s 20 subs 2?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."