4 yearly review of modern awards—Public holidays

[2014] FWC 9207

[2014] FWC 9207

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards—Public holidays
(AM2014/301)

JUSTICE ROSS, PRESIDENT SYDNEY, 17 DECEMBER 2014

4 yearly review of modern awards – common issues – public holidays.

[1] Section 156 of the Fair Work Act 2009 (the Act) requires the Fair Work Commission (the Commission) to review all modern awards every four years. In a statement issued on 17 March 2014 1 the Commission stated that the first 4 yearly review of modern awards (the Review) would comprise an Initial stage, dealing with jurisdictional issues, a Common issues stage and an Award stage.

[2] In the 17 March 2014 Statement, Public holidays was listed as a common issue to be dealt with as part of the Review. An initial conference was held on 17 November 2014 and a further conference was held on Friday 12 December 2014 to determine the scope and indicative timetable for dealing with this common issue.

[3] Prior to the conferences listed on 17 November and 12 December 2014 parties were asked to file a short written outline of any variations they are seeking. Among the claims outlined, the Australian Hotels Association 2 are seeking to vary the Hospitality Industry (General) Award 2010 to cap the number of public holidays, at a maximum of 11 per year. There are also a number of award-specific public holidays issues raised by union parties across a range of awards.

[4] A decision dealing with part-day public holidays was issued on 12 November 2014 3. The decision deals with provisions of various modern awards as they apply to part-day public holidays which have been proclaimed for Christmas Eve and New Year’s Eve in South Australia. This issue has been the subject of various interim decisions since 2012.4 In 2012, multiple modern awards were varied to include an additional schedule dealing with part-day public holidays. This occurred again in 2013 and 2014. There are a number of different versions of this schedule. In the decision of 12 November 20145, it was noted that the issue would be dealt with comprehensively in the Review as this would enable the Commission to fully review and consider part-day public holiday provisions in the context of the public holiday clauses, and other modern award provisions, more generally. The Commission would then be in a position to confirm the part-day public holiday schedules or make necessary amendments as part of the outcome of the Review.

[5] At the conference on 12 December 2014, it was submitted that there is general agreement that the issue of the penalty rate payable for public holidays should be dealt with by the Penalty Rates Full Bench but any proposal to vary the penalty rate payable for part-day public holidays (AM2012/355) should be dealt with by the Public Holidays Full Bench. In accordance with the Statement issued today in relation to Penalty Rates 6, the part-day public holiday issue will be finalised during the Public Holidays common issue under AM2014/301 as part of the Review. Any other issues in relation to the penalty rate payable on a public holiday will be dealt with in the Penalty Rates proceedings.

[6] The Australian Council of Trade Unions were asked at the conference to coordinate the views of the union parties and to clarify to what extent there is commonality between the various proposals. The Accommodation Association of Australia were asked to coordinate the issue of the penalty rate applying to part-day public holidays.

[7] Parties are to file written submissions outlining the scope of their case, the number of witnesses they are likely to call and the anticipated duration of proceedingsby no later than 4.00 pm on Friday, 13 February 2015.

[8] This matter will be listed for a further conference on Friday, 20 February 2015. A notice of listing for this conference will be issued shortly.

PRESIDENT

 1   [2014] FWC 1790.

 2   Submission, 1 December 2014

 3   [2014] FWCFB 7830

 4   [2012] FWAFB 10738, [2013] FWCFB 8983

 5   [2014] FWCFB 7830

 6   [2014] FWC 9175.

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