Modern Awards Review 2012 - Public Holidays - [2013] FWCFB 2168

[2013] FWCFB 2168

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Part 2 of Schedule 5, item 6—Review of all modern awards (other than modern enterprise awards and State reference public sector modern awards) after first 2 years

Modern Awards Review 2012 - Public Holidays
(AM2012/37, AM2012/79, AM2012/80, AM2012/82, AM2012/85, AM2012/87, AM2012/132, AM2012/134, AM2012/172, AM2012/177, AM2012/178, AM2012/179, AM2012/193, AM2012/196, AM2012/200, AM2012/201, AM2012/211, AM2012/215, AM2012/240, AM2012/245, AM2012/279, AM2012/280, AM2012/281, AM2012/282)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT SMITH
COMMISSIONER HAMPTON

MELBOURNE, 12 APRIL 2013

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 - public holiday provisions in various awards - not persuaded a sufficient case made out to support substantive claims - merit in some proposals for additional flexibility - remitted to single Members.

CONTENTS	Paragraph
1. Introduction	1
2. The Relevant Claims Referred To This Full Bench
2.1 The ACTU Claims Relating To Multiple Modern Awards	7
2.2 Hospitality Industry (General) Award 2010	12
2.3 General Retail Industry Award 2010	14
2.4 Food, Beverage and Tobacco Manufacturing Award 2010	15
2.5 Fast Food Industry Award 2010	16
2.6 Hair and Beauty Industry Award 2010	17
2.7 Nurses Award 2010	18
2.8 Social, Community, Home Care and Disability Services Industry Award 2010	19
2.9 Other public holiday applications	20
3. Additional Comments On The Scope of Evidence In Relation to Public Holidays	22
4.The Substantive Public Holidays Claims
4.1 The ACTU Model Provisions Relating to Multiple Modern Awards	26
4.2 Other Claims Related to Specific Awards	98
5. Conclusions	198

Abbreviations

ACE	Aged Care Employers
ACT-CCI	ACT and Region Chamber of Commerce and Industry
ACTU	Australian Council of Trade Unions
AEU	Australian Education Union
AHA	Australian Hotels Association
Ai Group	Australian Industry Group
AIRC	Australian Industrial Relations Commission
ANF	Australian Nursing Federation
APESMA	The Association of Professional Engineers, Scientists and Managers, Australia
ARA	Australian Retailers Association
ASU	Australian Municipal, Administrative, Clerical and Services Union
AWU	The Australian Workers’ Union
AWUQ	Australian Workers’ Union of Employees, Queensland
BIAQ	Baking Industry Association Queensland - Union of Employers
BMIAA	Baking Manufacturers Industry Association of Australia
CEPU	Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
CFMEU	Construction, Forestry, Mining and Energy Union
Commission	Fair Work Commission
CPSU	CPSU, the Community and Public Sector Union
Fast Food Award	Fast Food Industry Award 2010
FWA	Fair Work Australia
FW Act	Fair Work Act 2009 (Cth)
General Retail Award	General Retail Industry Award 2010
Hair and Beauty Award	Hair and Beauty Industry Award 2010
HBIA	Hair and Beauty Industry Association
Hospitality Award	Hospitality Industry (General) Award 2010
June 2012 Full Bench Decision	Modern Awards Review 2012 [2012] FWAFB 5600
MGA	Master Grocers Australia
MUA	The Maritime Union of Australia
NAPSA	Notional agreement preserving State awards
NES	National Employment Standards
NRA	National Retailers Association
Nurses Award	Nurses Award 2010
Penalty Rates Full Bench decision	Modern Awards Review 2012 - Penalty Rates [2013] FWCFB 1635
PHIEA	Private Hospital Industry Employer Associations
RDO	Rostered day off
SACS Award	Social, Community, Home Care…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FWCFB 2168
Decision Date: 12 APRIL 2013

CaseChat Overview and Summary

The case, Modern Awards Review 2012 - Public Holidays, involved a review of public holiday provisions in various awards under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The parties were representatives of employers and employees who had differing views on the amendments to the public holiday provisions. The dispute was heard by the Fair Work Commission. The legal issues before the court included whether the proposed changes to public holiday provisions were justified and whether the proposed changes provided sufficient flexibility.

The Fair Work Commission found that there was not sufficient evidence to support the substantive claims made by the parties. The Commission recognised that there was some merit in the proposals to provide additional flexibility in the public holiday provisions. However, the Commission was not persuaded that the changes proposed were necessary. The Commission remitted the matter to individual members for further consideration. The Commission found that the proposed changes to the public holiday provisions would not achieve the desired outcome and would cause confusion and inconsistency in the awards.

The outcome of the case was that the proposed changes to the public holiday provisions were not accepted. The Commission found that the current provisions were sufficient and that there was no need for further changes. The case was remitted to individual members for further consideration of the proposals. The final orders of the Commission were that the proposed changes to the public holiday provisions were not accepted, and the matter was remitted to individual members for further consideration. The current public holiday provisions would remain in place until further amendments were made.

Orders