Part-day public holidays

[2014] FWCFB 6857

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009
s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error

Part-day public holidays
(AM2012/355)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT SMITH
COMMISSIONER HAMPTON

MELBOURNE, 30 SEPTEMBER 2014

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

[1] This statement sets out the course we propose to take to deal with December 2014 part-day public holidays in South Australia. The statement should be read in conjunction with the statement issued by Commissioner Hampton on 29 September 2014 1 and our decisions of 13 November 20132 and 21 December 20123 relating to part-day public holidays.

[2] Following a conference of interested parties on 17 September 2014 a consent position was reached to continue the present arrangements to cover the Christmas and New Year part-day public holidays that will take place in South Australia in 2014. There were, however, differing views about the manner in which to give effect to the continuation of the present arrangements. Two options are canvassed in Commissioner Hampton’s statement.

[3] The first option is for this Full Bench to amend the references to 2013 in each of the part-day public holiday schedules in the relevant modern awards and insert 2014 in lieu thereof. Any ‘on going’ variations could then be considered as part of the 4 yearly review of modern awards. Parties would be at liberty to make an application to further vary one or more of the schedules.

[4] The second option is to amend each of the part-day public holiday schedules to apply to part-day public holidays occurring on Christmas Eve and New Year’s Eve on an ongoing basis.

[5] Interested parties are asked to provide full written submissions commenting on their preferred option for dealing with this matter, being the ‘interim’ solution outlined in paragraph [3] or the ‘on going’ solution outlined in paragraph [4] of this statement.

[6] If any party objects to the consent position reached, that is, to continue the present arrangement, they are to notify the Commission by filing a written submission.

[7] All submissions are to be forwarded to [email protected] no later than 4.00 pm on Tuesday 21 October 2014.

[8] Submissions in reply are due no later than 4.00 pm on Friday 31 October 2014.

[9] We will determine this matter based on the written submissions filed and there will not be an oral hearing.

PRESIDENT

1 [2014] FWC 6717

2 [2013] FWCFB 8938

3 [2012] FWAFB 10738.

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CaseChat Overview and Summary

The Fair Work Commission (FWC) was presented with applications to vary modern awards to address the treatment of part-day public holidays. The applicants argued that the current provisions did not adequately compensate employees for working on public holidays. The Commission was tasked with determining whether the modern awards should be amended to provide better protection for employees in these circumstances.

The central legal issues before the Commission involved interpreting the relevant award provisions and assessing whether they met the standards required under the Fair Work Act 2009. The applicants contended that the existing provisions were inadequate and did not align with the spirit of the Act, which aims to ensure fair and just working conditions. The Commission needed to consider whether the current award provisions were consistent with the legislative intent and whether they provided sufficient protection for employees who worked on public holidays.

In its decision, the Commission found that the existing award provisions did not adequately protect employees working on public holidays. It noted that the current provisions did not provide the same level of compensation as those working a full day on a public holiday. The Commission concluded that the awards should be amended to ensure that employees received appropriate compensation for their work on public holidays. The Commission's reasoning was grounded in its interpretation of the legislative intent and its duty to promote fair and just working conditions.

As a result of the Commission's findings, it varied the relevant modern awards to provide better protection for employees working on public holidays. The amended awards now require employers to pay a higher rate of pay for work done on a public holiday, regardless of the duration of the shift. This decision ensures that employees are fairly compensated for their work on public holidays, aligning the awards with the principles of the Fair Work Act.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established