Retailers attack Fair Work Australia decision on minimum shifts, consider appeal

Retailers have attacked Fair Work for upholding a decision to restrict businesses from scheduling shifts shorter than three hours, saying the move will effectively block younger employees from working after school.

But legal expert Peter Vitale says Fair Work has indicated in its ruling it would be willing to accept applications specifically dealing with minimum shift requirements for student casuals.

“It seems the full bench have dropped a pretty big hint the tribunal might be prepared to entertain an application, or consider an application that tries to change the minimum engagement of student casuals.”

“It seems to me that a lot of the focus in these applications by the retailers are focused around students and the commission is saying that it’s not prepared to make a general ruling, but if someone brings an application relating to students, they might consider it.”

The decision itself states that, “we cannot see any barrier to the ARA, or any other interested party, making an application to vary the award to deal specifically with the engagement of student casuals”.

“The fate of any such application would of course depend upon the tribunal’s assessment, in the relevant statutory context, of the material and submissions advanced for and against it.”

Australian Retailers’ Association executive director Russel Zimmerman said in a statement the association could still make an appeal in line with FWA’s comments. “The ARA will consider its options and the views of its members before committing to a brand new application and submission,” he said.

Nevertheless, Zimmerman says the decision is a major disappointment for smaller businesses, many of which will now be forced to find alternatives – including laying off those school-aged workers.

He quotes research showing over 55% of retailers employ school students for short shifts between 3pm and about 5pm, while 55% said they would stop employing students as a result of the ban.

“Instead of exercising their right to hand down a ‘commonsense’ ruling to allow casual student employees to work in the two hours between the end of school and close of business, FWA has taken a straitjacket approach to their decision making,” Zimmerman says.

“This debate has always been about the right for school students to work – nothing more nothing less. No doubt more young Australians will now lose their jobs simply because they are not able to work for three hour shifts during the week because of school commitments.”

The issue first emerged earlier this year, when the ARA challenged the FWA’s decision and requested minimum shifts of two hours. That application was rebuffed in March, with that decision upheld in a July hearing. But ACTU secretary Jeff Lawrence also said in a statement the decision will uphold the jobs and wages of thousands of younger works.

“It was the thin edge of the wedge. A minimum call of three hours exists in dozens of awards, and ensures that people are not called in for short shifts.”

“This is particularly unfair for workers who have to travel a long way to attend work, or who have to make childcare arrangements. Allowing students to work short shifts in the afternoon would also undercut the position of day workers (mostly working mums), whose shifts might be cut back to in favour of students working at lower rates.”

Lawrence isn’t confident any appeal would succeed, noting that, “employers have now been rebuffed on this issue on six separate occasions by the independent tribunal”.