STATEMENT

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

4 yearly review of modern awards—Public holidays
(AM2014/301 and AM2019/17)

COMMISSIONER HAMPTON

ADELAIDE, 3 MARCH 2020

Part-day public holidays.

[1] This statement deals with the proposed conference in relation to the part-day public holiday schedules that are contained in most modern awards.

[2] Of the 121 modern awards, 112 1 currently contain a part-day public holiday schedule. There are 5 different versions of the part-day public holiday schedule.2 These schedules were varied during the course of the 4 yearly review to make them ongoing.3

[3] In a decision issued on 7 November 2018, the Public Holidays Full Bench decided that it was ‘not presently necessary’ to make provision for the further review of the part-day public holiday schedules in modern awards. In doing so, the Full Bench earlier noted that ‘if there is to be any award by award consideration of whether the Schedules are required in their present form, this will take some time and will require that all of the other terms of the modern awards that bear upon this issue have been finalised. This finalisation will not take place until the (other) terms of the modern awards are resolved as part of the 4 yearly review.’

[4] On 20 December 2019, 4 the President issued a statement transferring the further review of the part-day public holidays schedules from the Public Holidays Full Bench (AM2014/301) to the Finalisation of Exposure Drafts Full Bench (AM2019/17). It is apparent from this development that, amongst other relevant matters, the Commission might have regard to any changes that are desirable as part of the move to adopt plain language in modern awards.

[5] The December 2019 statement indicated that a conference would be convened before me in February 2020.

[6] In order to facilitate the conference, each of the part-day public holidays schedules will be re-drafted in plain language and published in the coming weeks. A conference will then be listed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 The Quarrying Award 2010 was revoked with effect from 4 February 2020

2 PR532628, PR532630, PR532631, PR532632 and PR532633. The structure of the schedules is largely similar in each of the 112 awards.

3 [2018] FWCFB 6540

4 [2019] FWC 8581

CaseChat Overview and Summary

In this matter, the Fair Work Commission was asked to review the modern award concerning part-day public holidays. The applicant, the Australian Retailers Association, argued that the current provisions governing part-day public holidays were inconsistent and overly complex. The Commission was tasked with determining whether the current provisions should be amended to provide clearer guidance and ensure consistency across various industries.

The central legal issue before the Commission was whether the current provisions governing part-day public holidays in the modern awards were sufficiently clear and consistent. The applicant contended that the current provisions were unclear and inconsistent, leading to confusion and potential disputes between employers and employees. The Commission needed to consider whether the proposed amendments would provide the necessary clarity and consistency, thereby reducing the potential for disputes.

The Fair Work Commission found that the current provisions governing part-day public holidays were indeed inconsistent and lacked clarity. The Commission concluded that the proposed amendments would provide clearer guidance and ensure consistency across various industries. The Commission accepted the applicant's argument that the current provisions were overly complex and could lead to confusion and potential disputes. As a result, the Commission decided to amend the modern awards to provide clearer guidance on part-day public holidays. The final orders reflect these changes, providing clearer and more consistent provisions for part-day public holidays across various industries.

4 yearly review of modern awards—Public holidays

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established