“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU), Communications, Electrical, Electronic, Energy, Information, Postal,...
[2022] FWC 1978
•26 JULY 2022
| [2022] FWC 1978 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Australian Workers’ Union, The
v
Qantas Airways Limited
(C2022/1411)
| DEPUTY PRESIDENT EASTON | SYDNEY, 26 JULY 2022 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – public holidays – days substituted in lieu of public holidays falling on weekend days – whether agreement term causes detriment to an employee in any respect – NES interaction provisions – contravention of s.55 of the Fair Work Act 2009 – Agreement term averting a contravention – reading down agreement terms – s.115 and definition of ‘public holiday’ – interaction with Public Holidays Act 2010 (NSW).
In 2021 Christmas Day fell on a Saturday, as did New Year’s Day 2022. When Christmas Day, Boxing Day and New Year’s Day fall on weekend days the agreed public holiday provisions of the Qantas Airways Limited (AWU, AMWU, CEPU) Enterprise Agreement 10 substitute other weekdays for those days and require Qantas to treat the weekdays as public holidays in lieu. A dispute has arisen between Qantas and three unions about public holiday entitlements under the agreement. The three unions rely on the Public Holidays Act 2010 (NSW) and the National Employment Standards under the Fair Work Act 2009 (Cth) to argue that Qantas was required to treat six days over this period as public holidays rather than three.
The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and The Australian Workers’ Union (AWU) (“Unions”) referred the dispute to the Fair Work Commission for resolution under clause 12 of the Qantas Airways Limited (AWU, AMWU, CEPU) Enterprise Agreement 10 (“the Agreement”). Section 739(4) of the Fair Work Act 2009 (Cth) (“FW Act”) gives the Commission jurisdiction to deal with the dispute, including in this case, by arbitration.[1]
In summary, for the 2021-2022 Christmas-New Year period:
(a)clause 31 of the Agreement provides for three weekdays to be treated as public holidays “in lieu” when Christmas Day, Boxing Day and New Year’s Day all fall on weekend days – resulting in 3 public holidays in total; and
(b)the Public Holidays Act 2010 (NSW) (“PH Act”) provides for three additional public holidays when Christmas Day, Boxing Day and New Year’s Day all fall on weekend days – resulting in six public holidays in total;
(c)section 115 of the FW Act, as part of the National Employment Standards (“NES”), provides for three additional public holidays when Christmas Day, Boxing Day and New Year’s Day all fall on weekend days – resulting in six public holidays in total; and
(d)sections 55 and 56 of the FW Act arguably require the Agreement to be read down to the extent that any of the terms of the Agreement are detrimental to an employee when compared to the NES – resulting in three or maybe six public holidays in total.
For the reasons set out below I find that:
(a)clause 31 of the Agreement requires only three days to be treated as public holidays – being the weekdays that apply “in lieu” of the Christmas Day, Boxing Day and New Year’s Day;
(b)to the extent that clause 31 of the Agreement does not confer any public holiday benefit upon employees for Christmas Day (25 December), Boxing Day (26 December) and New Year’s Day (1 January), there is a detriment to employees covered by the Agreement; and
(c)Qantas is required to provide the public holiday benefits under the NES for Christmas Day (25 December), Boxing Day (26 December) and New Year’s Day (1 January), but is not required to provide the public holiday benefits contained in the Agreement for those days.
Clause 31 of the Agreement determines which days are to be treated as public holidays for the purposes of the Agreement:
“31.1 Public holidays
31.1.1 Employees other than casual employees are entitled to the following holidays without loss of pay:
31.1.1(a) New Year's Day, Australia Day, Good Friday, Easter Saturday, Easter Monday, Queen's Birthday, Labour Day, Anzac Day, Christmas Day, and Boxing Day (except in South Australia, where employees are entitled to Proclamation Day) or such other days as are generally observed in the locality as a substitute for any of the said days respectively.
…
31.1.1(c) any additional days gazetted, declared or prescribed as public holidays in a State, Territory or locality.
31.1.2 When Christmas Day is on a weekend, employees are entitled to a holiday in lieu on 27 December.
31.1.3 When Boxing Day is on a weekend, employees are entitled to a holiday in lieu on 28 December.
31.1.4 When New Year's Day or Australia Day is on a weekend, employees are entitled to a holiday in lieu on the next Monday.”
There is no contest that by the terms of clause 31.1 the weekday alternate days are substitute days rather than additional days – and I agree that the four sub-clauses (31.1.1 to 31.1.4) cannot be read together any other way.
More so, it seems clear to me that the intention of the Agreement was to provide for only three public holidays for each shift worker over any Christmas-New Year period.
The affected employees work a continual shift work roster, with shifts being 8 hours duration. This arrangement was introduced in 2020 in response to the changed operational requirements for Qantas as a result of the COVID-19 pandemic. They are said to be the only workers under the Agreement that work this shift pattern. When the current arrangement was introduced workers moved away from a ‘wage-averaged’ shift penalty payment on an extended roster arrangement to an ‘actuals’ payment on the 8 hour roster arrangement.
Consequently, the Unions’ members are aggrieved that they have missed out on public holiday benefits on 25 and 26 December 2021 and 1 January 2022. For example, some members are aggrieved because they worked on Christmas Day, missed out on family celebrations, and received only normal Saturday rates.
The Question(s) For Determination
The Parties do not agree on the questions the Commission must consider and the questions posed by each party are similar but different. The Unions say the Commission should determine the following:
(a)Does the “holiday in lieu” in clauses 31.1.2; 31.1.3 and 31.1.4 of the Agreement displace the entitlements of workers who already have entitlements under Clause 31.1.1(c) and/or the NES to a public holiday on that day? and
(b)Does “Christmas Day” in clause 24.2 of the Agreement mean 25 December or a substituted day in lieu?
Qantas says that the Commission should determine the following questions:
(a)Is an Employee entitled to payment of the relevant public holiday penalty rates specified in clause 24.2.2 of the Agreement, for time worked on either of 25 December 2021, 26 December 2021 or 1 January 2022? and
(b)If an Employee was rostered off on either of 25 December 2021, 26 December 2021 or 1 January 2022, is that Employee entitled to a day off in lieu pursuant to clause 31.4.1 of the Agreement?
The Unions pressed two arguments for why the Agreement requires all six days to be recognised:
(a)to the extent that the provisions in the Agreement reduce the number of public holidays to which employees are entitled, they cause a detriment to employees when compared to the NES and are of no effect; and
(b)the provisions of the PH Act are not excluded (per s.27(2)(j) of the FW Act) and so the parties were not free to define public holidays in the Agreement in a manner completely different to the State Act.
In the alternate the Unions argued that four days are recognised by the Agreement – being the three substitute days in lieu plus 25 December 2021. The Unions argue that clause 24 of the Agreement confers a specific benefit to employees working on Christmas Day, regardless of another day being a public holiday in lieu of Christmas Day.
Interaction with the NES
The high-water mark of the Unions’ case is that the substitution of certain weekdays “in lieu” of public holidays means that employees suffer a detriment compared to the NES because they no longer receive the “additional days” incorporated via s.115. In this regard the Agreement is said to impermissibly reduce the NES entitlement.
The relevant NES provisions for public holidays are in ss.114-116 of the FW Act:
“114 Entitlement to be absent from employment on public holiday
Employee entitled to be absent on public holiday
(1) An employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes.
Reasonable requests to work on public holidays
(2) However, an employer may request an employee to work on a public holiday if the request is reasonable.
…
115 Meaning of public holiday
The public holidays
(1) The following are public holidays :
(a) each of these days:
(i) 1 January (New Year's Day);
(ii) 26 January (Australia Day);
(iii) Good Friday;
(iv) Easter Monday;
(v) 25 April (Anzac Day);
(vi) the Queen's birthday holiday (on the day on which it is celebrated in a State or Territory or a region of a State or Territory);
(vii) 25 December (Christmas Day);
(viii) 26 December (Boxing Day);
(b) any other day, or part-day, declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of the State or Territory, as a public holiday, other than a day or part-day, or a kind of day or part-day, that is excluded by the regulations from counting as a public holiday.
Substituted public holidays under State or Territory laws
(2) If, under (or in accordance with a procedure under) a law of a State or Territory, a day or part-day is substituted for a day or part-day that would otherwise be a public holiday because of subsection (1), then the substituted day or part-day is the public holiday .
Substituted public holidays under modern awards and enterprise agreements
(3) A modern award or enterprise agreement may include terms providing for an employer and employee to agree on the substitution of a day or part-day for a day or part-day that would otherwise be a public holiday because of subsection (1) or (2).
…
116 Payment for absence on public holiday
If, in accordance with this Division, an employee is absent from his or her employment on a day or part-day that is a public holiday, the employer must pay the employee at the employee's base rate of pay for the employee's ordinary hours of work on the day or part-day.
Note: If the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under this section. For example, the employee is not entitled to payment if the employee is a casual employee who is not rostered on for the public holiday, or is a part-time employee whose part-time hours do not include the day of the week on which the public holiday occurs.”
Section 115(1)(b) quite clearly provides for additional public holidays. In the 2021 Christmas and New Year period, s.115(1)(b) provided 3 additional public holidays because of the provisions in the PH Act.
Section 115(2) allows days to be substituted if a relevant State or Territory law provides for a substitution. In the present matter s.115(2) has no work to do because the PH Act provides for additional days rather than substitute days.
The Unions submit that s.115 defines public holidays in a way that means for the purposes of this dispute six days must be treated as public holidays under the Agreement. The Unions rely on s.55 of the FW Act which provides that an enterprise agreement must not exclude the NES or any provision of the NES except where expressly permitted by a provision of Part 2-2 or regulations made for the purposes of section 127. The relevant provisions of s.55 and s.56 are as follows:
“55 Interaction between the National Employment Standards and a modern award or enterprise agreement
National Employment Standards must not be excluded
(1) A modern award or enterprise agreement must not exclude the National Employment Standards or any provision of the National Employment Standards.
Terms expressly permitted by Part 2-2 or regulations may be included
(2) A modern award or enterprise agreement may include any terms that the award or agreement is expressly permitted to include:
(a) by a provision of Part 2-2 (which deals with the National Employment Standards); or
(b) by regulations made for the purposes of section 127.
(3) The National Employment Standards have effect subject to terms included in a modern award or enterprise agreement as referred to in subsection (2).
Ancillary and supplementary terms may be included
(4) A modern award or enterprise agreement may also include the following kinds of terms:
(a) terms that are ancillary or incidental to the operation of an entitlement of an employee under the National Employment Standards;
(b) terms that supplement the National Employment Standards;
but only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the National Employment Standards.
Enterprise agreements may include terms that have the same effect as provisions of the National Employment Standards
(5) An enterprise agreement may include terms that have the same (or substantially the same) effect as provisions of the National Employment Standards, whether or not ancillary or supplementary terms are included as referred to in subsection (4).
Effect of terms that give an employee the same entitlement as under the National Employment Standards
(6) To avoid doubt, if a modern award includes terms permitted by subsection (4), or an enterprise agreement includes terms permitted by subsection (4) or (5), then, to the extent that the terms give an employee an entitlement (the award or agreement entitlement ) that is the same as an entitlement (the NES entitlement ) of the employee under the National Employment Standards:
(a) those terms operate in parallel with the employee's NES entitlement, but not so as to give the employee a double benefit; and
(b) the provisions of the National Employment Standards relating to the NES entitlement apply, as a minimum standard, to the award or agreement entitlement.
Terms permitted by subsection (4) or (5) do not contravene subsection (1)
(7) To the extent that a term of a modern award or enterprise agreement is permitted by subsection (4) or (5), the term does not contravene subsection (1).
56 Terms of a modern award or enterprise agreement contravening section 55 have no effect
A term of a modern award or enterprise agreement has no effect to the extent that it contravenes section 55.”
(Notes omitted)
Qantas argues that it is entirely open for parties to an enterprise agreement to define “public holidays” in a manner different to that found in State legislation or the NES. Similarly, it is open for parties to enterprise agreements to provide different penalty entitlements for different public holidays, accepting that “whether clauses to this effect ‘conflict’ with the NES (for the purposes of section 55 of the FW Act) is a different and separate question.”
Qantas accepts further that the NES provides for six public holidays over the Christmas 2021 period and accepts that if a term of the Agreement purported to deprive an employee of an entitlement found in the public holiday provisions in the NES, that clause would be of no effect to that extent.
However Qantas does not accept that it is required to treat all six days as if they were public holidays under the Agreement. Qantas accepts that for the three days that the Agreement has substituted out (25 and 26 December, 1 January) it must confer the public holiday benefits under the NES.
As Qantas correctly submitted, the NES does not provide any public holiday entitlements for the employees, other than a qualified entitlement to be absent from work on a public holiday without loss of pay (per s.114(1) and s.116 of the FW Act).
By contrast, the Agreement confers two different kinds of public holiday benefits on shift workers:
(a)those who are rostered to work and who work on the day receive public holiday penalties (per clause 24); or
(b)those who are not rostered to work are entitled to another day off in lieu, paid at ordinary time (clause 31.4).
Qantas accepts that for employees covered by the Agreement who were rostered to work on Christmas Day, Boxing Day or New Year’s Day, they were entitled to be absent from work, subject to any reasonable request by Qantas to attend work.
Qantas says that the posting of a roster is sufficient to constitute a request for each rostered employee for the purposes of s.114(2). No union took issue with this submission, nor did any union assert that any request made to an employee to work on these public holidays was unreasonable.
Qantas submits that even if the Agreement is read down to confer upon employees the entitlement to be absent, there is no consequence for any employee subject to this dispute because each employee who might otherwise have this right to be absent was subject to a request to work.
Much depends therefore on whether Qantas is required to confer the public holiday benefits under the Agreement for Christmas Day, Boxing Day or New Year’s Day, or whether it must only meet the public holiday obligations under the NES.
The Unions argue that s.115 of the FW Act does more than define public holidays for the purposes of s.114 and s.116. The Unions say that, in light of s.115 and s.55, parties cannot adopt their own definition of public holidays. They argue that clause 31.1 of the Agreement affects workers’ right to be absent on the substituted days, which has a flow on effect for the construction of clause 24 (payment for public holidays) and clause 31.4 (days in lieu when rostered off on a public holiday).
The Unions also argue that if s.115 is not a standard per se it is nonetheless a “provision” of the National Employment Standards and therefore s.55(1) of the FW Act prohibits that “provision” from being excluded by the Agreement.
Section 55 of the FW Act deals with the interaction between the NES and modern awards and enterprise agreements. Section 55(1) states that an enterprise agreement must not exclude the National Employment Standards. The balance of s.55 is permissive, insofar as it sets out the kinds of terms that may be included in a modern award or enterprise agreement, and how those terms interact with the NES. Section 55(4) allows modern awards or enterprise agreements to include terms that are ancillary or incidental to the operation of an entitlement of an employee under the NES, or supplement the NES, “but only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the [NES]”.[2] Where terms permitted by s.55(4) are included in an award or agreement, the NES terms operate in parallel with the award or agreement terms, “apply as a minimum standard, to the award or agreement entitlement”, and the award or agreement term does not “contravene” the prohibition in s.55(1).[3]
Section 56 provides that a term in an award or agreement that “contravenes” s.55 has no effect to the extent of the contravention, and s.186(2)(c) would not be satisfied if a term of an agreement contravened s.55.
The only part of s.55 that an award or agreement can contravene is the prohibition in s.55(1) against excluding the NES or a provision of the NES. An award or agreement term that conforms with s.55(4) does not contravene s.55(1), and inferentially a term that does not conform with s.55(4) does contravene s.55(1), if it has the effect of excluding the NES or a provision of the NES.
In my view sections 55 and 56 of the FW Act would require clause 31.1 of the Agreement to be read down. To apply the language of those provisions: the terms of the Agreement that would otherwise disentitle workers to the NES public holiday benefits “exclude” the NES provisions and therefore “contravene” s.55, and “have no effect” (per s.56) to the extent that they are “detrimental to an employee when compared to the [NES]” (per s.55(4)).
However in this matter sections 55 and 56 are not engaged because any “contravention” of s.55 is averted by clause 7.3 of the Agreement, viz:
“The terms of this Agreement apply in a manner that does not exclude the National Employment Standards (NES). That is, no provision of the NES is displaced by this Agreement but the NES provisions may be supplemented by the terms of this Agreement. Accordingly, the NES will continue to apply to the extent that any term of this Agreement is detrimental in any respect when compared with the NES.”
So to be precise, clause 7.3 of the Agreement requires clause 31.1 to be read down to the extent that clause 31.1 would otherwise improperly exclude any NES public holiday provisions. To apply the language of clause 7.3: clause 31.1 must be read down so that it only applies “in a manner that does not exclude the [NES]”.
Section 55(4) is still relevant to the present considerations because it is the yardstick by which the terms of the Agreement are measured against the NES. The “detriment” referred to in s.55(4) is not a reference to any detriment at all, despite the use of the phrase “detrimental to an employee in any respect”. The detriment is limited to detriment “when compared to the [NES]”. It is important to identify this detriment with some precision because a provision of an agreement is only read down “to the extent that the effect of those terms” are detrimental.
In this present matter the detriment when compared to the NES is the loss of NES benefits on the three substituted public holidays. Clause 31 must be read down to the extent that it causes this detriment.
The NES does not address all of the employment conditions normally associated with public holidays. The NES confers an entitlement to a day off on a public holiday without loss of pay and makes no provision for payment if an employee works on a public holiday. The entitlement to a day off is subject to the employer exercising a right to request that the employee work on the public holiday, although a request can be refused if the refusal is reasonable. The NES does not make any provision for shift workers who are not rostered to work on a public holiday to receive an additional day off or any other benefit.
For the purposes of this dispute, s.115 of the FW Act does not do any work beyond defining the days that are to be treated as public holidays under s.114 and s.116. Perhaps s.115(3) imposes a limitation on how a modern award or enterprise agreement term might allow an employer and an employee to agree to substitute NES public holidays, but that limitation is not relevant in this matter.
Sections 114 and 116 of the Act confer certain entitlements on employees in relation to the public holidays referred to in s.115. The entitlements in s.114 and s.116 operate in parallel with the terms of the Agreement and apply as a minimum standard to the agreement entitlement (per s.55(6)).
If clause 31.1 is understood to operate in the same way as s.115 of the FW Act, and do no more work than determine the days that are to be treated as public holidays, then I can understand how the Unions say that all six days must be treated as public holidays under the Agreement. That is, if both provisions are merely definitional, and the definition of public holidays in clause 31.1 must be read down, then there is some basis to the argument that the definition of public holiday in s.115 must be applied to the whole of the Agreement.
However the better view is that the terms and conditions of the Agreement provide a suite of benefits in relation to public holidays that apply over and above the NES minimum standards. I accept in this regard the submissions of Qantas that it is open for parties to enterprise agreements to provide different entitlements, including different or non-standard penalty entitlements for different public holidays, subject to s.55 and the NES minimum standards. The nub of the issue in the present dispute is that the suite of public holiday benefits provided in the Agreement falls short in respect of three particular days to which NES public holiday benefits are attached. As referred to above, where the suite of benefits nonetheless is “detrimental to an employee in any respect” then the suite of benefits must be read down to the extent necessary to avoid the detriment.
Similarly the Unions argument that s.115 is a “provision” of the NES even if it is not part of the standard itself does not take the Unions’ case any further. If s.115 is merely a provision, rather than a standard, it’s a provision that informs the standards set by s.114 and s.116.
Non-excluded NSW Legislation
The Unions also argue that because the PH Act is not excluded legislation (per s.27(2)(j) of the FW Act), parties to an enterprise agreement are not free to define “public holidays” in a manner completely different to that found in the State legislation.
This argument is similar to the Unions’ argument in relation to s.115 of the FW Act. For present purposes the PH Act does not do any more than declare certain days to be public holidays in the state of New South Wales.[4] Section 7 of the PH Act does incorporate the provisions of s.114 and s.116 of the FW Act “as laws of New South Wales” but otherwise does not separately attach any employment benefits to the fact that particular days are declared to be public holidays.
As such the PH Act does not confer any greater employment entitlement upon employees. Having found that Qantas is required to provide the NES public holiday benefits on the substituted days, the operation of the PH Act does not deliver any greater entitlement to the relevant employees.
Christmas Day
Finally the Unions rely on the wording of clause 24 of the Agreement which they say treats Christmas Day and Good Friday differently to other public holidays. Clause 24.2.2 of the Agreement is as follows:
“Shift workers who work on public holidays (except Christmas Day and Good Friday) must be paid at the rate of double time for all time worked on such public holidays. On Christmas Day and Good Friday, shift workers who work must be paid at the rate of double time and a half for all time worked on those days.”
It is literally correct that different and better entitlements are conferred upon shift workers who work on Christmas Day and Good Friday - they receive double time and half for all time worked compared to double time for other public holidays. The Unions rely on this differentiation to argue that the reference to Christmas Day can only be understood to be a reference to 25 December, rather than a weekday in lieu.
The difficulty with this interpretation of clause 24.2.2 is that it is directly inconsistent with clause 31.1.2 of the Agreement, which specifically substitutes 27 December as the holiday “in lieu” of Christmas Day. In order to read the two clauses harmoniously, the reference to “Christmas Day” in clause 24.2.2 must be read as a reference to either Christmas Day (if Christmas Day does not fall on a weekend) or 27 December if that day is observed in lieu of Christmas Day by operation of clause 31.1.2.
NES Public Holiday benefits
Qantas argues that it met the NES public holiday obligations for the relevant workers. It says that the posting of a roster was a reasonable request and that all of the employees who were rostered to work and worked, did so pursuant to Qantas’ reasonable request.
I accept this general proposition, and the Unions appeared also to except this proposition, but also am alert to the possibility that there may have been individual instances where employees did not receive the full NES benefit. The evidence in these proceedings was not comprehensive or conclusive in this regard and my findings should not be understood to be a universal finding that the NES public holiday provisions were satisfied for each and every relevant worker.
Determination of the Questions Posed
The Unions sought determination of the following questions:
(a)Does the “holiday in lieu” in clauses 31.1.2; 31.1.3 and 31.1.4 of the Agreement displace the entitlements of workers who already have entitlements under Clause 31.1.1(c) and/or the NES to a public holiday on that day? and
(b)Does “Christmas Day” in clause 24.2 of the Agreement mean 25 December or a substituted day in lieu?
For the reasons set out above, the answers to the Unions questions are:
(a)Yes - the “holiday in lieu” in clauses 31.1.2; 31.1.3 and 31.1.4 of the Agreement displaces the entitlements of workers who already have entitlements under Clause 31.1.1(c) on that day; and
(b)No - the “holiday in lieu” in clauses 31.1.2; 31.1.3 and 31.1.4 of the Agreement do not displace the entitlements of workers who already have entitlements under the NES to a public holiday on that day; and
(c)“Christmas Day” in clause 24.2 of the Agreement means either Christmas Day (if Christmas Day does not fall on a weekend) or 27 December if that day is observed in lieu of Christmas Day by operation of clause 31.1.2.
Qantas sought determination of the following questions:
(a)Is an Employee entitled to payment of the relevant public holiday penalty rates specified in clause 24.2.2 of the Agreement, for time worked on either of 25 December 2021, 26 December 2021 or 1 January 2022? and
(b)If an Employee was rostered off on either of 25 December 2021, 26 December 2021 or 1 January 2022, is that Employee entitled to a day off in lieu pursuant to clause 31.4.1 of the Agreement?
For the reasons set out above, the answers to Qantas’ questions are:
(a)No – employees are not entitled to payment of the relevant public holiday penalty rates specified in clause 24.2.2 of the Agreement, for time worked on either of 25 December 2021, 26 December 2021 or 1 January 2022; and
(b)No - employees rostered off on either of 25 December 2021, 26 December 2021 or 1 January 2022, are not entitled to a day off in lieu pursuant to clause 31.4.1 of the Agreement.
DEPUTY PRESIDENT
Appearances:
Ms K Presdee for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
Ms C Taylor for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)
Ms S Doumit for The Australian Workers’ Union (AWU)
Mr M Follett of Counsel instructed by Mr L Chung of Herbert Smith Freehills
Hearing details:
2022.
Sydney (By Video using Microsoft Teams)
May 31.
[1] CFMMEU v Falcon Mining Pty Ltd [2022] FWCFB 93 at [59]-[62].
[2] Fair Work Act 2009 (Cth), s.55(4).
[3] Fair Work Act 2009 (Cth), s.55(6) and s.55(7).
[4] See also s.8 of the Public Holidays Act 2010 (NSW) in relation to local event days in local government areas.
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