STATEMENT

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

s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error.

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

Part-day Public Holiday provisions in modern awards
(AM2012/355)

COMMISSIONER HAMPTON

ADELAIDE, 15 MAY 2015

Application to vary modern awards in relation to part-day public holiday provisions.

[1] The background to this matter is set out in the most recent Decision 1 issued by the Full Bench on 12 November 2014 regarding part-day public holiday provisions in various modern awards.

[2] In brief, most of the Commission’s modern awards were varied to include an additional schedule dealing with part-day public holidays, originally in 2012, and again in 2013 and 2014. 2 There are a number of different versions of the schedule but each is directed at confirming appropriate arrangements for certain part-day public holidays. On each occasion, the various schedules were specified to operate on an interim basis for the relevant year.

[3] The issue of part-day public holidays has also arisen in the context of the four-yearly review of modern awards and public holiday provisions have been identified as a common issue. 3 In that regard, there are various proposals to make the present part-day pubic holiday schedules a permanent part of the relevant modern awards and other proposals to significantly amend or remove the provisions as part of a more comprehensive review of public holiday provisions.

[4] It has become clear that the review proceedings dealing with public holidays will not be completed ahead of the part-day public holidays that will take place in South Australia in December 2015. Given that the present provisions operate only in respect of 2014, some further amendment to the respective schedules must be considered if they are to operate for the 2015 part-day public holidays to which they are directed.

[5] The President recently requested 4 that I convene a conference of interested parties in order to consider how this circumstance should be dealt with by the Commission.

[6] I convened a conference on 13 May 2015 and have now heard the positions of many of the organisations that have participated in previous proceedings concerning these provisions in recent years.

[7] All of the parties appearing at the conference (as listed below) supported, or did not oppose, the continuation of the present interim arrangements to cover the Christmas and New Year part-day public holidays that will take place in South Australia later this year.

[8] The joint position would be best addressed by the Full Bench issuing a Determination in the form issued in 2014 5 but varied so as to amend the references to “2014” in each of the part-day public holiday schedules to cite “2015” in lieu thereof. If undertaken in the near future, this would provide certainty for relevant parties well ahead of the upcoming part-day public holidays.

[9] I recommend that the Full Bench issue a draft Determination as outlined above, and subject to any objections, consider making the determination on the papers without conducting a further hearing on the matter.

Appearances:

E Van Der Linden, with R Cairney, for the South Australian Chamber of Commerce and Industry, trading as Business SA.

T E Evans for the Australian Hotels Association.

H Wallgren for the SA Wine Industry Association.

D Blairs for the Shop, Distributive and Allied Employees Association.

L Dooley for the Construction, Forestry, Mining and Energy Union.

M Sullivan for United Voice and SA Unions.

M Chan for the Australian Business Industrial and NSW Business Chamber.

R Bhatt for the Australian Industry Group.

C Brehas for the National Retail Association.

P Coswell for Restaurant & Catering Industrial.

Conference details:

2015

Adelaide with video links to Sydney and Melbourne

13 May.

1 [2014] FWCFB 7380.

2 See for example PR544262, issued 7 November 2013.

3 [2015] FWC 1484.

4 [2015] FWC 1921 at [65].

5 PR557581, issued on 12 November 2014 and PR558851, issued 10 December 2014.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the application to review the modern awards under section 226 of the Fair Work Act 2009, the Fair Work Commission (FWC) heard submissions from various parties concerning the part-day public holiday provisions within the modern awards. The application was initiated by the Australian Council of Trade Unions (ACTU) seeking amendments to the awards to ensure consistent and fair treatment of employees who work on public holidays. The Commission was tasked with determining whether the existing provisions were adequate and whether any changes were necessary to better reflect contemporary employment practices and provide clarity.

The key legal issues before the FWC were whether the current part-day public holiday provisions in the modern awards adequately addressed the entitlements of employees working on public holidays and whether the proposed changes would achieve greater consistency and fairness across the workforce. The FWC needed to consider the existing legal framework, the implications of any proposed changes, and the potential impact on employers and employees.

After reviewing the submissions and evidence presented, the FWC determined that the current provisions did not sufficiently address the entitlements of employees working on public holidays. The Commission found that the proposed changes would provide greater clarity and consistency, ensuring that employees received appropriate compensation for their work on public holidays. The FWC concluded that the amendments were necessary to better reflect modern employment practices and to provide fair treatment to employees across various industries. The FWC subsequently made orders to amend the relevant modern awards in accordance with the recommendations.

The final orders included specific changes to the part-day public holiday provisions within the affected modern awards. These changes aimed to provide more detailed guidance on the calculation of entitlements for employees working on public holidays, ensuring that all employees were treated fairly and consistently. The Commission's decision was based on the need to provide clear and equitable treatment for employees while also considering the practical implications for employers.

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