Arbitration In Contempt
The Industrial Relations Pecking Order as shown in the NSW Retail Industry
G F Carmody
'The new structure of the Industrial Commission
(of New South Wales) will serve to streamline its operations
and procedures, and answer the legitimate demands of
those who seek a less legalistic body with more emphasis
'However, let me also make it clear that our paramount
consideration is that the commission (sic) should retain
the respect of all parties to the conciliation and
'Last year the Labor Council and its constituent unions,
and indeed the Government, expressed concern about
relations between the NSW Government and the unions'.
'That relationship is now as it should be---better
'The success of the commission (sic) over the years
has largely depended on its judicial power, but on
its rigid impartiality and integrity which has given
its determinations credibility and binding force'.
'All parties can be assured that the restructured
commission (sic) will have an enhanced credibility
and its role as the prime conciliator and arbitrator
in industrial disputes in this State be maintained'.
(Extracts from speech to the Labor Council of NSW
by Mr Wran, Premier of NSW, on 20 February 1986, proposing,
inter alia, extensive restructuring of the Industrial
Commission of NSW. Extracts as reported by Christopher
Jay in the Financial Review, 21 February 1986. Parentheses
This paper reviews some recent developments relating
to award conditions applicable in the New South Wales
retail industry. The focus is upon award conditions
in what are classified as 'general shops'.
Two main themes are developed.
The first theme is that the arbitral authorities clearly
are aware of the inverse relationship between the cost
of labour and capacity to employ that labour. However,
some particular proposals by them for award variations
have drawn upon that relationship deliberately to reduce
employment prospects---both absolutely and relatively
- for particular categories of labour (specifically,
young people). Such proposals ostensibly were motivated
by concerns about 'justice'.
The second theme is that, notwithstanding inferences
that might be drawn from some of the
statements reproduced at the start of this paper, the
actual industrial relations pecking order in New South
Wales at the present time is as follows. At the bottom
of the heap are the unemployed (in this case especially
those who are both young and relatively unskilled).
Next come the employers (the smaller below the larger).
The Industrial Commission follows. Above the Industrial
Commission is the State Government. As to whether the
State Government tops the pecking order, or is in turn
beholden to another group, I will leave the reader
to draw his or her own inferences from the facts presented.
My own views, I think, will be quite clear.
II. The Macken Report, 1983
On 7 October 1983, Mr Justice James J Macken of the
Industrial Commission of NSW forwarded to the Minister
for Industrial Relations and Technology his Report
on certain questions concerning the opening and closing
hours of shops in NSW and related matters.
This Report (the Macken Report) was the final response
to a reference by the Minister for Industrial Relations
to the Industrial Commission on 1 December 1982. The
terms of reference are presented in detail in Appendix
A. Briefly, the Industrial Commission was required
to report on the appropriateness of the then existing
opening and closing hours of shops and, if those hours
were judged not to be appropriate, what hours would
be appropriate, having regard to the interests of all
parties affected. In the event of any change in trading
hours, the Industrial Commission was also required
to report on changes in other conditions of employment
Most employers argued that trading hours should not
be extended. Some argued that an extension was desirable,
but only on the basis of abolition of all penalty rates
(except overtime) and retention of a 40-hour week in
order to offset the additional costs involved. Only
a few retailers supported an extension of trading hours
without these conditions. The unions opposed extended
trading, arguing that it would lead to the further
'casualisation' of the retail industry. (However, Mr
Justice Macken noted that such opposition might not
continue if 'quid pro quo' protecting and enhancing
the interests of the unions, could be introduced as
part of a package including extended hours.)
Following a lengthy process of considering written
submissions and hearing witnesses on the matters referred
to the Industrial Commission, Mr Justice Macken prepared
his conclusions as to trading hours and working conditions
(inter alia), and these are presented in his Report.
Based on those conclusions, Mr Justice Macken made
recommendations to the Minister. These are presented
in full in Appendix B. In summary, Mr Justice Macken
made the following recommendations:
(i) Trading Hours
Trading hours for general shops in NSW should be extended
to allow one additional trading night (up to 9:00 p.m.)
each week. Shopkeepers could choose which extra night
to trade. Closing time for general shops on Saturdays
should extend to 4:00 p.m. Fines and penalties for
breaches of trading hours should be increased. Restrictions
on extended trading in holiday and tourist resort areas
should be lifted.
(ii) Working Hours, The Working Week, Conditions
The spread of working hours, the standard of working
hours, the 'shape' of the working week, and other conditions
of employment of employees engaged in the retail industry,
should be referred to the Industrial Commission of
New South Wales.
On 25 October 1983, the NSW Minister for Industrial
Relations and Technology, Mr Hills, announced that
the NSW Cabinet had accepted the recommendations in
the Macken Report and that legislation to give effect
to them would be introduced in the current session
of the NSW Parliament. A copy of his statement is in
It is interesting to note that Mr Hills' statement
refers explicitly to concerns about the rights of full
time employees. It also states that the Government
will seek the deferment of the abolition of the under-18
wage rate until 1 January 1986, to provide time 'for
investigations of a system in which the industry can
hire and train junior employees, and establish the
proportion of these juniors to adults'. His statement
also indicated that a special tribunal (the Retail
Trades Industrial Tribunal) would be established and
that, inter alia, this tribunal would consider applications
for 'awards or variations in awards and conditions
for employees in the industry'. The statement concluded
by endorsing the Macken Report as 'a fair response
to the conflicting interests represented in the industry
... (that) deserves the support of the community.'
As a result of this decision, a new division (Division
7) was inserted in the Industrial Arbitration Act
1940 by the Industrial Arbitration (Retail Trade)
Amendment Act, 1983, No. 161. Section 38V in Division
7 provides that, as soon as possible after its commencement,
the Retail Trades Industrial Tribunal:
- shall conduct a review of all awards relating to
the retail industry;
- in conducting that review, the Tribunal shall determine
what alterations to the 31 terms of the awards will
- upon the extension of trading hours;
- to guarantee the rights of existing full-time weekly
employees wishing to continue rosters applicable to
them before the extension of trading hours;
- following such a review the Tribunal shall make
such variations to existing awards, or such new awards,
as may be necessary to give effect to its determinations.
The references to employment conditions in Mr Hills'
statement do not relate to recommendations in the Macken
Report. Rather, the Report suggests that these and
related questions should be referred to the Industrial
Commission of NSW.
However, these references are relevant to Chapter
9 of the Macken Report, entitled 'Conclusions As To
Working Conditions'. In this Chapter, Mr Justice Macken
noted: 'A pleasing unanimity, between union and employer
alike, .... with respect to the need for urgent and
radical change' as regards conditions of employment
(Paragraph 9.1). Mr Justice Macken went on to note
that the terms of reference 'require the yardstick
of the public interest to be used to measure questions
of both trading hours and employment practices in the
retail industry'. He proceeded from that to assert
that 'the paramount dimension of public interest applicable
both to trading periods and employment practices is
the issue of full-time permanent employment for workers
in the industry (and hopefully for the tens of thousands
of the unemployed for whom jobs can be found given
minor adjustments to trading hours and award provisions).'
In that context, Mr Justice Macken noted the marked
increase in the employment of casuals and part-timers
in the retail industry. Over the ten years to 1983
the average ratio of casuals and part-timers to permanent
employees increased from 30:70 to around 70:30. He
concluded that this trend, which he accepted as being
undesirable, was not a reason to oppose any extension
of trading hours. Rather, its causes lay in the nature
of award conditions and it was these that needed to
be changed. Mr Justice Macken argued that the relative
costs of hiring different categories of labour built
into the relevant awards militated in favour of casuals
and part-timers, and younger employees, and against
permanent, full-time, adult, employees.
Mr Justice Macken clearly had particular views on
the value of particular occupations. At paragraph 9.3,
for example, he observed that: 'In take-away food stores
the whole industry now operates to provide work experience
for secondary school children; which experience only
too frequently fits them for the dole.'
Mr Justice Macken concluded that the whole structure
of the award should be referred to the Industrial Commission
of NSW in Court Session, and offered no final solution
to the problem identified in his Report. However, he
then went on to offer some suggestions about possible
directions for change 'while pointing out that there
is more than one answer to the problem' (Paragraph
9.5). His suggestions for modification to the award
included the following:
(i) Replacement of the concept of an hourly rate
of pay and a 40-hour 5 day week by the concept of a
shift of 7 hours.
(ii) Apart from preservation of existing employees'
rights to work a 40-hour week in 5 days should they
so desire, there should be phased in a 35-hour working
week comprising 5 shifts of 7 hours each. That might
be worked as 5 shifts on as many days, but would in
most cases be worked as a 4 day week, with one day
having a double shift. Any shift concluding at 9.00
p.m. would be paid as a full shift, even though it
was only 5 hours: that would approximate current penalty
rates for such shifts. Any 5 hour shifts on Saturdays
would also count as full shifts. (These suggestions
were to form the basis of the 'premium hours' concept
- see below).
(iii) As 'a further contribution to the creation of
full-time employment for school leavers' (paragraph
9.6), most of the junior rate provisions in the award
could be abolished. One junior rate should be provided,
not less than the 18-year old rate, 'thus, removing
from the award the financial incentive to employ school
students as against school leavers' (paragraph 9.6).
(iv) 'A further disincentive' to the employment of
school children would be the construction of permanent
rosters that included at least one day during which
otherwise juniors would be at school. Such a roster
system would also discourage school children from seeking
such work because the adoption of 'premium hours pay
arrangements (i.e. where the notional shift duration
exceeds the actual duration) would eliminate the penalty
loadings to hourly rates of pay for weekend work often
performed now by such employees.
Mr Justice Macken clearly expected that a reduction
in the length of the working week should be accompanied
by a proportional diminution in the weekly pay of employees.
He claimed that a 4 day week would more than compensate
employees for this cost. However, he envisaged phasing-in
arrangements to allow those presently working a 40
hour week over 5 days to continue that practice if
they desired so to do. He concluded Chapter 9 of his
Report by asserting that an advantage of a reversion
to permanent: labour would be that over time 'the industry
could be returned to recognising and using the traditional
skills of the permanent shop assistant: it would provide
work worthy of the inherent dignity of a man and not
merely be a derogatory way of earning a living.' (paragraph
As to the value judgements upon which Mr Justice
Macken's conclusions are based, views may differ. It
is probably universally agreed that unemployment should
be reduced. However, in assigning priorities within
the ranks of the unemployed, Mr Justice Macken's conclusions
are much more controversial. To the extent that he
gives priority to reducing adult unemployment, at the
expense of juniors, he seems to ignore the relatively
severe unemployment problem affecting younger people.
Public attention has focussed increasingly upon youth
unemployment. The so-called 'Priority One' initiative
- whatever its actual defects purports to reflect the
Federal Government's assessment of where the most
urgent unemployment problem lies.
To the extent that Mr Justice Macken favours full-time
permanent employment over part-time employment, again
he seems to be ignoring changes in work preferences
over the last decade or more. Part-time employment
is increasingly favoured by many in the workforce,
notably married women with children. Permanent part-time
employment arrangements have been increasingly recognised
within Australia (e.g. within the Federal Public Service).
But it is Mr Justice Macken's value judgements about
students (whether at school or in tertiary institutions),
and under-18 employees, that are most controversial.
Not only does he suggest explicitly a financial disincentive
to their employment (abolition of the under-18 award
rates), but also he proposes that students effectively
be debarred from employment in the retail industry
(or, if not, jeopardise their education and also, in
some cases, break the law in seeking to keep their
This effective prohibition on entry into the labour
market for a particular group, to my mind, is outrageous.
Which group will be next? Married women with young
children? Then older members of the workforce? Then
the second income earner in any family group? Will
we finally get to a stage where only 'breadwinners'
are allowed (legally) to work? (It is worth noting
that the award provisions in the retail industry already
include 'proportions clauses' that are intended to
limit the employment of juniors relative to adults.)
The right of any person to seek employment is surely
part of the framework of a free, democratic society.
However, in Australia at the present time, democracy
does not entitle employers legally to offer work to
those seeking it unless applicable award conditions
are complied with. Mr Justice Macken's proposal further
circumscribes employers' ability to respond to those
I do not believe that democratic society should attempt
to solve its unemployment problems effectively by cutting
the supply of eligible labour by legislative
or arbitral fiat.
Turning to the mechanisms involved in his suggestions,
it is apparent that Mr Justice Macken is aware of the
inverse relationship between labour costs and capacity
to employ. This can be seen by reviewing his suggestions.
(a) His proposal for a 35-hour week based on 5 seven
hour shifts is basically a work-sharing proposal. He
is aware that wages per week will need to be reduced
proportionately to avoid cost increases from introduction
of a shorter working week. The premium hours concept
is intended roughly to approximate existing penalty
rates (although it averages closer to time and a half
than to time and a quarter).
However, to the extent that on-costs (especially for
permanent full-timers) have a fixed or non-proportional
component, the increased requirement for numbers of
employees resulting from shorter actual hours
for those already employed will involve increased average
labour costs for the same amount of labour services
provided. The net employment gains will depend upon
the balance of these cost increases and increased consumer
demand from extended trading hours. If extended trading
only redistributes the pattern of consumer demand and
does not affect the total, then the net effect will
be a reduction in employment compared to what
otherwise would apply. To the extent that rosters must
focus on 7 hour shifts (or even half that time), the
problems of matching employees to fluctuations in retail
demand over the day, or week might add further to labour
(b) The proposed abolition of the under-18 award rates
increases the relative cost of hiring such labour.
Mr Justice Macken clearly intends that this relationship
should be exploited to secure the employment objectives
that he believes are most important. Again, however,
his proposals involve increasing the average
cost structure facing employers. Unless extended trading
results in increased consumer demand, this proposal
therefore will operate both to reduce aggregate employment
and to increase the unemployment rate for younger people.
The net effect on adult unemployment is not clear.
It is worth noting that Mr Justice Macken could have
suggested exploitation of precisely the same mechanism,
but by lowering above-18 award rates. That would lower
average labour costs, and produce net employment gains,
as well as the shift towards adult employment that
(c) The rostering of employees to include shifts that
cover school hours is intended as a straight prohibition
on retail industry employment for some erstwhile employees.
Such protectionist devices are familiar in Australia
(e.g. local content rules for Australian advertising).
Again, however, they effectively raise average labour
costs faced by employers, with consequences similar
to those outlined in (b) above.
(d) The suggestion for a quota of part timers, and
the proportions arrangements tying junior employment
to adult employment raised by Mr Hills, are familiar
market share-type restrictions on employment (as apply
to some imports into Australia). Their effects on average
labour costs, and their consequences on employment,
have already been noted.
At best, therefore, Mr Justice Macken's proposals
would redistribute employment away from juniors towards
adults, and away from casuals towards permanent employees.
The aggregate employment effect would depend upon consumer
demand responses to extended trading. If extended trading
merely redistributed shopping patterns, then increased
average labour costs arising from the restructuring
of the award proposed by Mr Justice Macken would reduce
employment capacity compared with the status quo.
In any case, at a time when unemployment is high and
wen the Macken Report was concluded it was even higher
(around 10 percent, including 26 per cent for 15-19
year members of the workforce seeking full-time work
in 1983-84) there is clearly much to be said for holding
average unit labour costs down, and allowing any growth
in consumer demand to generate increased demand for
labour, rather than being dissipated in higher costs
It is hard to see how Mr Justice Macken's proposed
'minor adjustments' to award provisions, combined with
extended trading hours, would help the 'tens of thousands
of the unemployed'. The unemployed would more likely
be the worse for any action to implement his proposals.
III Implementation Of The Macken Report: Developments
Legislation providing for extended trading hours was
subject to a review of the retail industry before being
put into effect.
In February 1984 the Retail Traders' Association of
New South Wales (RTA) attempted to reach agreement
with the unions on the terms of a variation to the
award which would provide for new trading hours and
establish appropriate working conditions. The unions
saw variations in award conditions along the lines
suggested (but not formally recommended) in Chapter
9 of the Macken Report as an essential quid pro quo
for extended trading. Employers wanted reduced, not
increased, average labour costs as an offset to extended
trading. Negotiations broke down. The RTA commenced
proceedings before the Retail Trades Industrial Tribunal
in February 1984 seeking a variation in the award to
extend trading hours along the lines formally recommended
in the Macken Report. The unions opposed the approach
by the RTA (and sought higher penalty rates). The Tribunal
reserved judgement on 8 June 1984.
Before handing down its decision (see below), the
Tribunal was asked to approve the registration of an
individual agreement between the unions and six retailers,
including five major retailers. The parties to the
agreement were, on the union side, the Shop, Distributive
and Allied Employees' Association, New South Wales
(SDA) and the Shop Assistants and Warehouse Employees'
Federation of Australia, Newcastle and Northern, New
South Wales. The retailers were G J Coles and Coy Limited,
Grace Bros. Holdings Limited, Target Australia Pty
Ltd., Australian Safeways Proprietary Limited, Woolworths
Limited, and Jack Butler and Staff Proprietary Limited.
These retailers employed over 50,000 people, representing
around 75 per cent of union membership in NSW, but
less than 30 per cent of all those employed in the
retail industry in NSW.
The industrial agreement proposed changes to the award
that provided for extended trading and changed award
conditions broadly along the lines suggested in Chapter
9 of the Macken Report. Some of the main proposals
- Provision for full-time employees (paid for 38 ordinary
hours per week), part-time employees (employed for
no more than 30 ordinary hours per week) and casuals
(employed only for a specific task or period in response
to 'unforeseen' needs for such employment and not to
exceed 15 per cent of total hours worked). Juniors
attending secondary school were not to be employed
as casuals. Casual employment was to be reduced by
natural attrition resulting in increased permanent
- Extended trading on Thursday and Friday evenings
(up to 9.00 p.m.), and on Saturday (up to 4.00 p.m.).
- Provision for a 38-hour working week (down from
40 hours) with some flexibility of rostering provided
that full-time employees work not more than five days
per week and no more than 19 days per 28 day period
on ordinary time. There was no corresponding reduction
in weekly wages.
- For part-time employees, the standard week would
be not less than 16 hours nor more than 30 hours. Part-time
employees must work at least four hours on any day
(Monday to Friday) and three hours (Saturday). Where
such employees do not work at least two eight hour
days (Monday to Friday) or one day of eight hours (Monday
to Friday) and six hours (Saturday), then such part-time
employees must be engaged at least four days per week.
- Premium hours and penalty rate provisions were as
(i) for full-time employees: ordinary time worked
on a Saturday credited at time and a half,
(ii) For full-time employees: ordinary time after
6.00 pm. on Thursday or Friday credited at time and
(iii) for full-timers and part-timers in the industry
prior to the agreement and electing not to work ordinary
hours during extended trading, penalty rates of time
and a half on Saturday and time and a quarter after
6.00 p.m., on Thursday;
(iv) part-timers paid at time and a half on Saturday
(ordinary hours) and time and a quarter after 6.00
p.m. on late trading nights (ordinary hours);
(v) casuals paid at an hourly rate equal to the full-time
hourly rate plus a loading of 15 per cent, and paid
at time and a half for Saturday trading (ordinary hours)
and at ordinary times on late trading nights (subject
to casuals becoming eligible for time and a quarter
for late trading nights two years after the date of
implementation of the agreement);
(vi) Sunday work paid at double time with a minimum
payment for four hours at that rate.
- For juniors, payment of 50 per cent of the adult
rate for those aged 15 years or less. The 40 per cent
rate for those under 16 years was dropped.
- Proportions clauses limiting juniors to seniors
ratios (both for part-timers and full-timers) to one
to one, and limiting part-timers to full-timers to
one to one. (Seniors were defined as employees 21 years
of age and over, but not including full-time and part-time
employees employed on a temporary basis.)
The RTA opposed this approach, and argued that it
was a matter for the Industrial Commission in Court
Session. The unions, of course, disagreed.
On 18 July 1984, the Tribunal handed down its judgement.
It rejected the RTA claim. It welcomed the agreement
'as being in conformity with the principles espoused
by the Industrial Commission of New South Wales on
19 October 1983 in the State Wage Case of 1983'.
Those principles reflected, at the State level, the
Accord and the wage fixing Principles operating at
the Federal level. The Tribunal found that cost offsets
negotiated for the retailers involved were such as
to involve only small net cost increases from the introduction
of a 38-hour week, meeting the 'substantial cost offset'
requirement. (See Principle 5 of the Federal-level
wage fixing Principles.) It concluded that the agreement
could be entered into between the parties and filed
with the Industrial Registrar in the knowledge that
it was consistent with the wage fixing Principles.
The Tribunal was chaired by Mr Justice Macken.
The agreement split the NSW retailers' Smaller retailers,
and David Jones, were strongly opposed to its terms.
They argued that its cost implications could only reduce
employment capacity. First, they were sceptical that
extended trading would increase consumer demand. Second,
the arrangements involved added directly to average
labour costs. Third, the agreement did not allow sufficient
flexibility of rosters too match employees with fluctuations
in retail demand. Fourth, some retailers believed that
the agreement was a ploy by the larger, more self-service
orientated retailers, to improve their competitive
position relative to other retailers.
Many employees also expressed concern about the agreement.
Reports in the Sydney Morning Herald on 25 July 1984
indicated that the RTA believed that, even excluding
the 5,000 or so working at McDonalds (a special shop,
unaffected by the agreement, at least at present) up
to 15,000 jobs for students could be affected. Both
school students and those attending university expressed
concern publicly about prospects for retaining their
casual jobs given the rostering provisions and the
agreement to phase out casuals. The rosters effectively
closed the retail industry to university and school
students. For many, these jobs provided important supplementary
financial assistance that was essential for them to
continue their education.
Not all groups were unhappy. To quote Jack Taylor,
industrial reporter, in the Sydney Morning Herald on
25 July 1984:
'There seems little doubt that the agreement is
good for the (employed) members of the Shop, Distributive
and Allied Employees' Union. And for the five parties,
the deal brings great benefits---extended trading hours,
greater flexibility, a 35-hour week and improved penalty
rates for Saturday workers'.
On 23 July 1984, the Retail Trades Industrial Tribunal
handed down its judgement on the RTA/SDA claims in
relation to the then existing award conditions in other
The main issue in dispute was that of penalty rates
in the context of extended trading hours.
While it was agreed that penalty rates for extended
trading on the additional night each week should be
time and a quarter (as for Friday night), the appropriate
penalty rate for Saturday (ordinary hours) was not
agreed. The RTA proposed time and a quarter. The
unions (supported by the Labor Council of NSW) argued
for time and a half as the standard for all employees
for all ordinary time worked on Saturday.
Mr Justice Macken, citing the 1972 Shiftworkers
Case, concluded that the NSW Standard was time
and a half and he did not propose to depart therefrom.
He ruled that time and a half should apply to ordinary
hours worked on Saturday afternoon for all employees
(full-time, part-time or casuals).
Mr Justice Macken did not rule on the union claim
for time and a half for ordinary hours on Saturday
morning. That issue was held over pending a more general
review of the awards (see below).
On 9 August 1984 Mr Justice Macken made a new Shop
Employees (General Shop-Interim State) Award, including
the elements of his 23 July 1984 judgement. It was
applicable to general shops, except those party to
the abovementioned industrial agreement and some smaller
Extended trading hours came into operation in August
1984. The extension continued to be controversial.
Many retailers were not convinced that extended trading
hours were necessary, especially late trading on an
additional week night. A survey conducted for the RTA
in October 1984 suggested that 68% of shops were remaining
closed on Friday nights and 53% of shops were using
Saturday afternoon trading to varying degrees.
IV. Review Of Retail Industry Awards And TRA Appeal:
Industrial Commission In Court Session. 1984-85
Following the judgement by Mr Justice Macken on 23
July 1984, the RTA applied that Mr Justice Macken ,
as the Retail Trades Industrial Tribunal, should remove
various matters before him to the Full Bench of the
Industrial Commission in Court Session. Mr Justice
Macken agreed. Subsequent proceedings before the
Commission in Court Session were initially conducted
before a Bench comprising the President, Justice Fisher,
Mr Justice Sweeney and Mr Justice Macken! McDonald's
Systems of Australia Pty Ltd objected to Mr Justice
Macken appearing as a Member of the Court Session Bench,
given his authorship of the Macken Report and involvement
in decisions giving rise to other issues before the
Commission. Mr Justice Macken decided not to continue
as a Member of the Court Session Bench.
The Industrial Commission in Court Session Bench was
reconstituted, comprising the President, Mr Justice
Fisher, and Justices Sweeney and Watson. The RTA requested
that the Full Bench hear an appeal against Mr Justice
Macken's judgement of 23 July 1984 on Saturday afternoon
penalty rates as well.
This Full Bench of the Commission reviewed the awards
relevant to the retail industry, and the RTA appeal.
The award review was conducted by considering 'model
awards' prepared by the unions and employers as summarising
their preferred positions. These 'model awards' proposed
variations to existing awards (in particular, the Shop
Employees (State) Award, made by Mr Justice Macken
in December 1981).
These matters were mentioned by the Full Bench on
10 December 1984 and listed for hearing on dates in
February, March and April 1985. In the event, hearings
continued into July 1985.
As the Full Bench began its hearings, award conditions
in the NSW retail industry were determined not by one
award, but by two awards and one industrial agreement:
(i) The Shop Employees (General Shops-Interim (State)
Award applied to general shops, except for those covered
by (ii) and (iii) below.
(ii) Most major retailers were covered by the industrial
agreement filed in July 1984 with the Industrial Registrar
(although small shops---12 employees or less---operated
by these companies or their subsidiaries that did not
open afternoon on Saturdays were excluded, and were
covered by (iii) below).
(iii) The remaining smaller shops were covered by
the Shop Employees (State) Award.
Penalty rates, and labour costs more generally, were
a central issue, not only for general shops, but also
for more specialised retailers.
Broadly, the union position was that the terms of
the industrial agreement should be built into the general
shop award structure, excluding shops with twelve employees
or less. In contrast, the RTA stressed the adverse
labour cost, and therefore employment, impact of the
union claims and proposed reductions in, if not abolition
of, penalty rates and any other provisions adding to
The employer case stressed the need for flexibility
in manning to cope with retail demand fluctuations.
It also emphasised the use of wage bill/sales revenue
ratios as central guidelines for monitoring commercial
viability. Given the competitive nature of the industry,
and consequent small profit margins, Such ratios tended
to imply, other things being equal, an inverse proportional
relationship between changes in labour costs and numbers
employed. The 'premium hours' concept built into the
industrial agreement was opposed by employers.
The adverse employment consequences of higher labour
costs were emphasised by employer witnesses responding
to questioning about the effects of extended trading.
In general, retailers concluded that extended trading
had not resulted in increased sales, although some
retailers had experienced increases in market share
at the expense of others. It had altered trading patterns
and added to costs. Some employer witnesses claimed
that those retailers that had been party to the industrial
agreement had done so to obtain a competitive edge
from extended trading relative to other retailers.
Such witnesses added that such a ploy might provide
better working conditions, but only for an ever diminishing
number of employees.
The remainder of this Section deals with the main
details of the judgement of the Commission on the matters
before it. The Judgement was handled down on 16 August
(i) Penalty Rates
The RTA sought abolition of penalty rates for late
trading on Thursday or Friday, although it had not
appealed against the earlier determination for time
and a quarter for such periods.
The Commission decided not to change present penalty
rates in this case.
The unions sought time and a half as the award rate
for ordinary time Saturday morning work, citing the
Shiftworkers Case of 1972.
The Commission judged that that earlier decision specifically
applied to shift workers and did not constitute, of
itself, a case for other workers that in effect were
undertaking extended day work. The Commission noted
that time and a quarter had been agreed for Saturday
morning work in shops by consent in 1974. Further,
the Commission agreed with the employer advocate, Mr
Hill, Q.C., that to vary the rate as sought by the
unions would be contrary to the wage fixing Principles
and that neither Principle 6 nor Principle 9, dealing
with anomalies and inequities, and allowances, respectively,
would be available to support such a change.
The Commission therefore refused the union claim,
and in general concluded that there should be no further
extension of penalty rates in relation to weekend employment.
As regards Mr Justice Macken's determination of 23
July 1984 on penalty rates for Saturday afternoon work
the Commission concluded that:
'... different considerations apply to this industry
and ... the more appropriate course would have been
to extend the rate of time and a quarter applicable
to Saturday morning work to work on Saturday afternoon
following the extension of trading hours on Saturdays'
(Page 30 of the Commission's Judgement on matters
No. 1682 of 1984 and No. 2203 of 1984.)
The Commission went on to argue that:
'There is another reason which, in our view, is
equally compelling and which would inhibit any approach
which sought to apply a standard applicable to weekly
shift work employees to Saturday work by shop employees
in the retail industry. The evidence before us establishes
that the extension of shopping hours into Saturday
afternoons has not resulted generally in additional
sales but rather to a spread of the existing level
of sales, at added cost to the industry. The added
cost of additional employment includes both penalty
rates and other operating costs. Further, the success
of Saturday afternoon opening is unevenly distributed.
It has proven more successful in large shopping centres.
Elsewhere in strip shopping areas and in a number
of country areas it has met with limited success with
closures often well before 4.00 p.m. or complete closure
on Saturday afternoons.
We believe that there is a definite public interest
in the added amenity of Saturday afternoon shopping
and a direct industrial interest in the further employment
opportunities that extended trading on Saturday afternoon
implies. We are reluctant to impose a further cost
burden which would inevitably tend to discourager
Saturday afternoon shopping, discourage its spread
and limit employment opportunities'. (Page 31
of the Judgement.)
The Commission therefore upheld the RTA appeal with
respect to Saturday afternoon penalty rates for weekly
and part-time staff, and reinstated a rate of time
and a quarter (for those shops not covered by the industrial
As to penalty rates for casual employees (who receive
a 15 per cent loading), Mr Justice Macken had determined
that, in addition, time and a half should apply
on Saturday afternoon in his judgement of 23 July 1984,
although no additional penalty was awarded for late
trading on week nights.
The Commission agreed with Mr Justice Macken's findings
as regards late trading on week nights. The Commission
also judged that the same conclusion should apply to
Saturday mornings. As to Saturday afternoons, however,
the Commission did not uphold the award of time and
a half, but awarded an allowance of $6 ($3.30 for juniors)
to casuals employed to work for more than 4 hours on
a Saturday, with no change in allowances ($2 for adults
and $1.10 for juniors) for casual employment up to
4 hours on a Saturday.
Subject to that change, the Commission allowed the
RTA appeal against Mr Justice Macken's determination
with respect to casuals on 23 July 1984.
(ii) The Premium Hours Concept
The unions sought implementation of this proposal
in general shops employing more than 12 employees.
The RTA strongly opposed the concept as impractical.
The Commission was not convinced that the RTA's claims
were wholly valid. However, the Commission did not
convert the claim into an award requirement, but suggested
that the parties confer in an attempt to establish
agreement on an appropriate award provision that would
give an option to introduce such a form of rostering
if desired. The Commission was not more specific but
indicated it would deal further with the matter 'as
may be necessary'.
(iii) Restrictions on Casual Employment
The unions sought to restrict casual employment to
15 per cent of total working hours in a shop, at least
with effect from two years from the date of introduction
of extended working hours. The RTA strongly opposed
the union claim.
The Commission found that there was little evidence
of difficulties arising from casual employment but
suggested that the matter be kept under notice by the
unions. The Commission added that no presently employed
casual employees should be dismissed or otherwise disadvantaged
by any change to award conditions relating to casual
or other employment that might be proposed in future.
As to the claims before it, the Commission rejected
the union proposals further to restrict the employment
of casuals, although it also rejected an RTA claim
reducing the minimum casual shift from four to three
(iv) Restrictions on Junior Employment
The registered industrial agreements between the unions
and some employers provide that 'a junior person
attending secondary school shall not be engaged as
a casual employee'. Such juniors shall not be employed
by companies party to the agreement as part-time employees
either, except for the employment of Christmas temporaries,
without 'the written permission of the Secretary
of the appropriate union'.
The unions sought the inclusion of these provisions
in the Award.
The Commission's views on the claim are summarised
in the following extract from its 16 August 1985 judgement
'In our view, the proposed clause is in terms discriminatory
of a class of persons. As has often been mentioned
this Commission under Statute has no supervision over
agreements filed in its Registry and consequently and
regrettably this discriminatory provision is now enforceable
as if it were an award of this Commission. On the hearing
before us no attempt was made to present any argument
relating to the position of secondary school students,
nor were they as a class or group in any way upon notice
of these proceedings or of the proposed disposition
of their interests nor were they represented or heard.
There was evidence from some employers that they
preferred secondary students for casual employment
because they were better motivated and perhaps more
capable. It was also said that many junior applicants
for employment did not present well.
We accept that it is preferable to employ school
leavers who may otherwise join the unemployed than
secondary students and we would hope that employers
would take note of this observation. Such an objective
ought not to require a discriminatory prohibition upon
the employment of secondary students, some of whom
may have quite urgent reasons for requiring employment.'
The Commission rejected the union application.
(v) Elimination of 15 Year Old Junior Rate
The union advocated abolition of the 15 year old rate
(40 per cent of the adult rate). The RTA opposed the
The Commission noted that no case was made out by
the unions for such a claim. Further, the Commission
concluded that the wage fixing Principles precluded
the making of such an alteration.
'To grant a 20 percent increase in the commencing
rates for junior employment would clearly, in our view,
infringe the Principles so obviously that further discussion
is not required, and in any case no case on the merits
has been made out. (Page 44 of the Judgement.)
The union claim was rejected.
The unions sought a one-to-one limit on the ratio
of part-timers to full-timers to supplement existing
proportions (one-to-one) limiting ratios of juniors
to seniors (both part-time and full-time).
The Commission noted that the existing proportion
clauses had often been honoured in the breach, at least
on a shop-level basis. The Commission was prepared
to accept employer pleas for flexibility with respect
to proportion clauses in general shops. On the evidence
before it, the Commission concluded that the issue
of proportions could be met by general shops in a self-regulatory
way, and that:
'... the existing provision, while not entirely
anachronistic, is necessary.' (Page 47 of the Judgement.)
The Commission indicated its preparedness to reconsider
the proportions issue in the Light of experience over
the next two years.
(vii) Part-Time Employment
The RTA claim for introduction of the concept of a
'regular employee' (minimum 8 hours per week with a
period of engagement of four weeks) was regarded by
the Commission as an ambit claim.
The Commission agreed substantially with the unions'
claim, providing for part-time employment in general
shops for a minimum period of 4 hours on any day, and
at least 16 hours per week (up to a maximum of 30 hours),
except that in some cases, where Saturday work is involved,
the minimum weekly employment can be 15 hours.
(viii) Form of Award/Commencement Date/Duration
The Commission judged that a single Shop Employees
(State) Award be made replacing the two (then) existing
awards. The new Award was to operate as from the first
pay period commencing on or after 16 August 1985 and
was to remain in force for two years.
V. Legislative Repercussions, 1986
The 16 August 1985 judgement by a Full Bench of the
Industrial Commission of NSW was largely welcomed by
the employers. Not surprisingly, the unions were not
happy. The Federal Secretary of the SDA, Mr Joe de
Bruyn. indicated that industrial action would be considered
as part of a campaign to overturn the Commission's
However, such action did not eventuate, and over the
latter part of 1985, the retail industry continued
operating relatively smoothly. There were some rumours
going around the industry to the effect that the unions
were seeking action from the State Government, but
there was virtually no industrial disputation.
On Wednesday, 20 November 1985, the Wran Government
introduced its 'Factories, Shops and Industries (Further
Amendment) Bill 1985' into the Legislative Assembly.
There appears to have been little fanfare associated
with the introduction of this Bill. The Government's
intentions were the subject of a brief evening television
news report on that day. As far as I can tell, there
has been virtually no other media reporting of the
Wran Government's initiative. The Bill has now been
passed into law (although copies of the legislation
in final form are not yet available from the NSW Government
Bookshop or Printer) as the 'Factories, Shops and Industries
(Further Amendment) Act 1985'.
The purpose of the Bill was 'to amend the Factories,
Shops and Industries Act 1962 with respect to the registration
and trading hours of shops and for other purposes.'
Promoting those 'other purposes' were the following
provisions (which appear on page 5 of the Bill):
(1) The introduction after Section 79 of a new Section,
79A, as follows:
'Premium rates of pay for Saturday afternoons 79A.
(1) The regulations may amend any award made under
the Industrial Arbitration Act 1940 (whether or not
published) which fixes the rates of pay of employees
in shops by the substitution of the rate of time and
a half for any other rate of pay specified in the
award for ordinary hours worked by any such employees
on a Saturday after 12 noon.'
(2) The regulations made under subsection (1) may
also provide for the amendment of any award referred
to in that subsection so far as to apply the rate of
time and a half to hours worked by casual employees
in shops on Saturdays after 12 noon and for the omission
of provision in the award for any loading in relation
to those hours.'
In short, the penalty rate determinations made by
Mr Justice Macken on 23 July 1984, which were overturned
by a Full Bench of the Industrial Commission of NSW
in Court Session on 16 August 1985, were reinstated
by direct legislative action by the Wran Government
in November 1985.
Since then, to my knowledge, there has been no real
outcry against this legislative action, not even by
the State Opposition.
The foregoing description of developments in relation
to retail industry award conditions in NSW demonstrates
very clearly that the arbitral authorities know that
higher labour costs operate to reduce capacity to employ
Individual members of the Industrial Commission of
NSW seem to have different views about how that relationship
should be exploited to secure a variety of employment
objectives. Mr Justice Macken's proposals in Chapter
9 of his 1983 Report are directed quite deliberately
at promoting fewer (or no) job opportunities for younger,
casual and even part-time employees, if that will produce
some increase---however small---in full time adult
employment. The 16 August 1985 Full Bench judgement
seems somewhat more concerned with aggregate employment,
and appears to reflect an unwillingness to accept the
priorities explicitly adopted by Mr Justice Macken.
The Wran Government's preferences---as revealed by
its 1985 legislation on Saturday afternoon penalties
- seem to be closer to those of Mr Justice Macken than
to those of Justices Fisher, Sweeney and Watson. For
a Government whose declared priority is 'jobs, jobs,
jobs', such preferences are puzzling, to say the least.
The nature of the retail industry makes these preferences
particularly difficult to understand. As pointed out
by Mr Roy Lawrence, Executive Director of RTA, in an
affidavit before the Full Bench of the Industrial Commission
on 22 March 1985:
- the retail industry is the largest employer of labour
in the tertiary sector, employing over one-fifth of
- service industries such as the retail industry are
increasingly relied upon as a source of jobs: they
are labour intensive and employment capacity therein
is sensitive to labour cost increases;
- the retail industry is the dominant employer of young
people (15-19 years), employing over one third of employed
persons in this age group;
- female employment in the retail industry is proportionately
greater than for most other industry classifications:
about half of total retail industry employment is female.
In short, the retail industry is well suited to provide
job opportunities, particularly part-time and casual
jobs for the younger and less skilled members of the
workforce. Why try to change its employment characteristics,
given the pattern of unemployment in Australia?
The views of another authority on unemployment, especially
youth unemployment are worth noting. As Clyde Cameron,
former Minister for Labor in the Whitlam Government,
observed in his book Union in Crisis:
'We have not helped the young by demanding that
they not be employed unless paid excessive wages. We
have priced them out of the labour market and we deserve
no thanks for that.'
It is hard to avoid the conclusion that the gratitude,
or otherwise, of unemployed youth (and other categories
of labour) is a matter of indifference to the key decision
makers in the industrial relations arena in NSW.
The ranking of the Industrial Commission, the State
Governments and the unions in the industrial relations
pecking order provides a plausible explanation for
The Wran Government has thus proposed a restructuring
of the Industrial Commission of NSW. Apparently the
intent of the proposal is to produce a more informal
arbitral system, with dispute processing in a less
legalistic atmosphere by a system of (newly appointed)
The Labour Council of NSW has been pressing for such
changes for some time. Employers have opposed them
because of concerns that the arbitrators appointed
by the Government might be more amenable to union objectives.
The details of the proposal have not yet been worked
Nevertheless, in the light of the retail industry
award developments reviewed in this paper, it is perhaps
a little easier to read between the lines (where that
is necessary) of Mr Wran's speech to the Labor Council
The Industrial Commission of NSW occupies a subservient
position in the industrial relations pecking order.
Respect for the Commission, and its impartiality and
credibility, seem open to question, or at least under
In the light of the legislative reaction to the Full
Bench judgement of 16 August 1985, modesty (in the
sense suggested by H R Nicholls) would seem to be a
necessary attribute for Commission members in NSW.
There is a further development in this story that
On Wednesday 23 April 1986, the NSW Government introduced
in State Parliament the Industrial Arbitration (Further
Amendment) Bill, 1986. On 24 April 1986 the Bill
was passed by the Lower House along Party lines.
The object of the Bill, outlined in the explanatory
note at the start, is to amend the Industrial Arbitration
(a) to limit the duration and provide for the review
of exemptions in respect of awards granted to employers
under Section 87 or 88 of that Act;
(b) to provide that decisions of the Retail Trade
Industrial Tribunal are not to be the subject of any
appeal or review, and
(c) to make express provision for the making of reports
by the Tribunal on matters referred to it by the Minister.
Schedule 2 of the Bill relates to amendments concerning
the Retail Trade Industrial Tribunal. It provides for
the replacement of Section 38T (2) and (3) by the following:
(2) An order, award, ruling or decision made by the
Tribunal in the course of exercising the jurisdiction
or powers referred to in subsection (1) shall, for
the purposes of this Act, be deemed to be an order,
award, ruling or decision of the Commission in court
(3) Notwithstanding anything in this Act, no appeal
lies to the Commission from any order, award, ruling
or decision of the Tribunal.
In short, the Retail Trade Industrial Tribunal---at
present M;r Justice Macken---has been made appeal-proof
One can only wonder why this extraordinary amendment
was introduced. Why is this provision applicable only
in respect of the retail industry, while the right
of appeal is presumably maintained in respect of other
industries? Is this an attempt to ensure enshrinement
in awards of a particular view about the desirability
(or, more accurately, the asserted undesirability)
of casual employment in the retail industry, regardless
of its youth employment consequences and in the face
of the more sensible views of the Commission in Session?
Is it a device for allowing the relevant unions to
seek to overturn all of the decisions of the NSW Industrial
Commission handed down on 16 August 1985?
Terms of Reference
Reference by the Minister for Industrial Relations
Pursuant to Section 35 (1) (o) of the Industrial
Arbitration Act, 1940, the Minister for Industrial
Relations hereby refers to the Industrial Commission
of New South Wales the following matters, namely,
(a) Whether the opening and closing hours of shops
(other than small shops), as defined in the Factories,
Shops and Industries Act, 1962, are appropriate having
regard to the reasonable requirements of persons who
purchase goods, the interests of persons engaged in
the business of the retail sale of goods (including
proprietors of small shops), the employees engaged
in such retail sale and the public interest, and if
not what opening and closing hours would be appropriate.
(b) Whether in the event of any change in the trading
hours of retail shops an alteration should be made
in the spread of working hours, the shape of the working
week, or other condition of employment of employees,
and if so, the nature of such changes.
(c) Whether any extension of trading hours generally
would have an adverse effect on small shops and the
persons employed therein.
(d) Whether extended trading hours on the two Saturday
afternoons immediately prior to Christmas 1982 would
have any adverse or prejudicial effect on-
(i) the interests of the persons engaged in the retail
sale of goods or the employees engaged in such retail
(ii) the outcome of the inquiry required by paragraphs
(a) to (c) hereof.
Recommendations As To Trading Hours
11.1 It is recommended that the trading hours in general
shops in New South Wales be extended so as to allow
trading on one additional night of each week, other
than Thursday night, to 9 p.m. Such additional trading
night to be selected by the shop-keepers.
11.2 It is recommended that the closing time for general
shops on Saturdays be extended to 4 p.m.
11.3 It is recommended that butcher shops be allowed
to remain open on a Thursday night to 9 p.m. but that
extended trading provisions otherwise applicable to
general shops between Monday and Friday or on Saturday
morning should be deferred until such time as the parties
indicate that there is a sufficient supply of qualified
labour to enable butcher shops to open during the same
period as general shops.
11.4 That the Factories, Shops and Industries Act,
the Regulations made thereunder and the Schedules to
the Act and Regulations pursuant to which shops are
described and classified for purposes of extended trading
should be repealed and replaced with a single system
of regulation pursuant to which shops are gazetted
to be of a class or otherwise to be allowed to trade
during extended periods, such gazettal being dependent
upon the issuing by the Under Secretary of a certificate
defining the shop as one permitted to trade during
extended periods either generally or for particular
periods and which is so permitted to trade only during
the currency of such a certificate which may be withdrawn
by the Under Secretary if such a shop should, in his
opinion, cease to be of the class or to have complied
with conditions precedent to the issuing of the certificate
to trade. Should an appeal be instituted against refusal
by the Under Secretary to issue such certificate it
should be made clear that pending the hearing of such
an appeal, such shop or class of shops cannot trade
during extended trading periods.
11.5 It is recommended that the Act and Regulations
be amended so that the Minister may refer to the Industrial
Commission of New South Wales an application for an
extended trading classification and that the Commission
be empowered to issue a Report to the Minister recommending
or otherwise the granting of such a certificate either
absolutely or on conditions and that the discretion
to so recommend would be governed by the criteria of
the public interest which would involve a consideration
of the consequences upon other traders of extended
trading of an applicant, the consequences on employees
or potential employees and the number of fulltime jobs
which would be provided should such a certificate to
trade be issued.
11.6 It is recommended that prosecutions for breach
of trading hours should be able to be initiated by
a union, or unions, by the Minister, by the Retail
Traders' Association or other registered union of employers
in the industry or by any person or corporation whose
trading interests are affected. It is further recommended
that fines for breaches of trading hours should be
increased so that a fine not exceeding $10,000 may
be levied for any third or subsequent offence and that
where an employer has been fined on three occasions
the Industrial Commission of New South Wales may issue
an injunction against any person apparently in charge
of premises which have been trading illegally, or any
employee or person working upon such premises in the
illegal sale of goods against continuing to breach
the Act or Regulations. That such fines and injunction
process should also be available to prohibit the advertising
of shops trading in breach of trading hour legislation
or those responsible for such advertisements being
publicised. It is further recommended that where breaches
of trading hours continue in defiance of the law that
the certificate to trade as a shop should be cancelled
by the Under Secretary on the application of any person
interested. It is further recommended that applications
for registration as a small shop or otherwise for exempt
status should be publicised and be available to unions
and employers in the industry to enable an objection
to such application where the applicant is, in the
opinion of the party to the industry, not a genuine
11.7 It is recommended that the present restrictions
on extended trading in holiday and tourist resort areas
should be lifted and that shops in holiday resort areas
should be allowed to trade during extended trading
periods during all such times of the year as tourist
demand so requires or suggests that they should remain
open. It is further recommended that the current definition
of Tweed Heads be redefined so as to expand the trading
area south by reference to the Tweed River at the point
of Barney's Point Bridge, and thus make uniform trading
hours within the town. More appropriately perhaps the
Tweed Heads area should be redefined as a holiday resort
area and shops be permitted to trade during extended
trading periods by reference to such gazettal.
11.8 It is recommended that the definition of 'small
shops' in the Act should be simplified and expanded
so as to allow for the employment of not more than
four (4) fulltime employees together with such part-time
relief as is necessary to make such employment effective.
11.9 It is recommended that in the event of applications
being made for exempt status or for certification as
a shop entitled to trade during extended trading periods
on weekdays or on weekends, the processing of such
applications should be done in such a way so that retailers
who complied with the trading laws during the course
of this Inquiry would be afforded preferential treatment
over traders who persisted in trading illegally during
Recommendations As To Working Hours, The Working
Week Or Conditions Of Employment
11.10 That the question that the spread of working
hours the standard of working hours, the shape of the
working week and other conditions of employment of
employees engaged in the retail industry should be
referred to the Industrial Commission of New South
Wales pursuant to Section 35 (1) (o) of the Industrial
Arbitration Act, 1940.
Recommendations As To 'Small Shops'
11.11 It is recommended that in addition to the expansion
In the size of the staff eligible to be employed in
a 'small shop' as outlined above, the definition of
a 'small shop' should be amended so that an abuse of
the provision by which a single emporium can be notionally
divided into separate departments and called 'small
shops' is prevented. In this regard the South Australian
legislation appears to provide an effective model.
It is also recommended that the powers of the Under
Secretary be enlarged so that the issuing of a certificate
to trade as a 'small shop' and its withdrawal should
be the determinant of the right to trade as such and
that where no certificate is in force, the automatic
classification should be that of a general shop.
Recommendations As To Paragraph (d) Of The Terms
Of Reference---Christmas Trading
11.12 It is recommended that with respect to Christmas
trading in 1983 that apart from any extension to trading
hours envisaged and applied at that time otherwise
as a result of this Report, all shops should be authorised
to trade on the three Saturday afternoons before Christmas
excluding the afternoon of Christmas Eve. Thus, if
the Recommendation is accepted, all-day Saturday trading
would be permitted on r, t and t December, 1983.
Statement by NSW Minister for Industrial Relations
and Technology, Mr Pat Hills
Tuesday, October 25, 1983.
Retail Trading Hours
Cabinet today accepted the recommendations of Mr Justice
Macken on the New South Wales retail trading industry.
Legislation to effect the recommendations will be
introduced in the current session of the NSW Parliament.
But regulations will be brought down immediately allowing
afternoon trading on the three Saturdays before Christmas
this year---December 3, 10 and 17.
General shops will be allowed to remain open until
4 p.m. on Saturdays under the amending legislation
and until 9 p.m. on a second night during the week,
in addition to Thursdays
Shopkeepers will be allowed to choose for themselves
which extra night they will trade.
The amendments will guarantee the rights of people
who wish to remain permanent full-time employees in
the Industry and who wish to continue to work their
Any disputes arising in the industry over this will
be determined by a special tribunal to be called the
Retail Trades Industrial Tribunal.
The Tribunal will consist of a Judge of the Industrial
Commission as chairman, a conciliation Commissioner
as deputy to act in the absence of the judge, and two
part-time members who will act as assessors---one representing
shopkeepers and the other representing employees.
The Government will appear before the Tribunal and
seek the deferment of the abolition of the under 18
wage rate until January 1, 1986. This two year period
will provide time for investigations of a system in
which the Industry can hire and train junior employees,
and establish the proportion of these juniors to adults.
The Tribunal will also consider applications for awards
or variations in award conditions of employees in the
It will make recommendations to the Minister on extended
trading certificates for shops, after considering the
effects on other shops, employees and the creation
of full-time jobs.
The definition of 'small shops' will be tightened
to prevent abuse of the law by which a single emporium
can be notionally divided into separate departments
which are then called small shops, and therefore, exempt
from the trading hours provisions of the Act.
Small shops will be allowed to have no more than four
full-time employees---instead of the present two---plus
part-time employees where necessary.
Applications for small shop status will have to be
publicised and made available to unions and employers.
This will enable objections if, in the opinion of
any party to the industry, an application is not genuine.
The policing problems of the Act are to be tightened.
Fines for breaches of trading hours will be increased
from the present maximum $1,000 for each offence no
matter how many times it is repeated.
In future, a maximum fine of $10,000 may be levied
for any third or subsequent offence.
Where a trader has been fined three times the Industrial
Commission may issue an injection against any person
who is apparently in charge.
If breaches continue, the offending shop's certificate
to trade may be cancelled altogether on the application
of any person interested.
The Macken Inquiry was exhaustive and thorough.
Written submissions were received from employee and
employer groups as well as individual traders.
A broad section of shopkeepers, union representatives
and employers was personally interviewed by the Judge.
His valuable and comprehensive report was presented
to the Government on Friday, October 7, 1983.
His perceptions and reasoned analysis combined to
make as complete an overview of the retail industry
in this State as could be achieved.
While not pressing for complete deregulation of the
industry, Judge Macken's plan is a fair response to
the conflicting interests represented in the industry.
His recommendations have received the support of the
Industry and trade unions and deserve the support of