In a ruling delivered on Wednesday morning at 9:30am, the full bench of the high-court unanimously found no jurisdictional error in the way the commission made its original decision.
The unions sought a judicial review of the commission’s decision to reduce Sunday and holiday penalty rates and other worker entitlements in hospitality and retail sectors.
They argued the commission’s views were inconsistent with the Fair Work Act, it did not properly understand the nature of the inquiry and failed to take into account relative living standards and the needs of low paid workers.
Justice Bromberg said although the decisions to cut rates were unquestionably important to a large number of people, the court’s role was limited to finding errors in law.
“The court’s task is restricted to reviewing the process by which the Fair Work Commission arrived at those conclusions,” he said.
“The court’s task does not entail reviewing the correctness of the Fair Work Commission’s conclusions.
“In the view of the court, the Fair Work Commission’s decision, read as a whole, reveals no jurisdictional error.”
Australian Retailers Association (ARA) executive director Russell Zimmerman, whose lawyers argued before the court several weeks ago that the FWC had not abdicated its responsibility to low paid workers, said he’s “hopeful” that this will be the end of the case.
“The more challenges they give it the more difficult it will be for someone to overturn this,” Zimmerman said.
“I’m hopeful that this is now the end of it.”
SDA national secretary Gerard Dwyer said the decision would not end the SDA and United Voice’s bid to continue its fight over the cuts.
“We are disappointed that the Federal Court has not sided with the SDA and United Voice in our bid to overturn the Fair Work Commission decision to cut the pay of some of the country’s lowest paid workers,” he said.”
“But the battle does not end here. Over 700,000 hard working Australians who rely on their penalty rates to make end meet, have had their pay cut.”
Opposition Leader Bill Shorten, who has repeatedly indicated his intention to change the rules guiding the FWC to “protect the take home pay” of retail workers, said this morning that he was “disappointed” by the decision.
Disappointing decision in the Federal Court. It’s clear the best way to protect penalty rates is to vote Labor.
— Bill Shorten (@billshortenmp) 10 October 2017
Should a High Court appeal be lodged the subsequent case could run into the proximity of the 2019 election; however if the case is once again dismissed it could pour water on any attempt to overturn the original cuts.
“If there was a challenge in the High Court and we won then you’d have a possible alternate Prime Minister coming in that would be considering overturning legislation that was brought in by the FWC, ratified by the Federal Court, that then was also ratified at the High Court – it would be a fairly big task,” Zimmerman has told IR.
Unions have spent the last six-months conducting a comprehensive media campaign against the Penalty Rate cuts, which has also spilled over into other industrial relations battlegrounds over enterprise bargaining agreements, the minimum wage and trading hours.
“Thousands of our Protect Penalty Rates campaign supporters have been making their voices heard by members of Parliament by sending direct messages and collecting petitions,” SDA national secretary Gerard Dwyer said.
“We’ve been campaigning in marginal seats, talking to voters about the impact that cuts to penalty rates will have on low paid workers.”
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