FURTHER STATEMENT

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

Part-day public holidays
(AM2014/301)

VICE PRESIDENT HATCHER
COMMISSIONER HAMPTON
COMMISSIONER JOHNS

SYDNEY, 18 JULY 2018

4 yearly review of modern awards – common issue – public holidays – part-day public holidays.

[1] On 15 June 2018 we issued a Statement 1 concerning part-day public holiday provisions that are contained in most modern awards. That Statement invited submissions on the matter, including responses to two options dealing with various “Interim” schedules which have now operated for 6 years.

[2] The options raised with the parties as a means to finalise the arrangements were as follows:

• Make each of the existing schedules ongoing, by deleting reference to any particular year. This would involve a determination(s) being issued to vary each of the relevant modern awards. If this option were adopted, the Full Bench may also permit any interested party to make a specific contrary application, which would be considered and dealt with in advance of the part-day public holidays scheduled for later this year (Option 1); or

• Convene a conference of all interested organisations with a view to exploring whether separate schedules (or particular provisions within the awards concerned) are actually required across the modern awards, and if so, the appropriate provisions (Option 2).

[3] A number of submissions have been made in response to the Statement. The Australian Industry Group and the Australian Hotels Association have suggested that Option 1 be adopted on the basis that there have been no significant issues identified with the operation of the various award schedules containing the part-day public holiday provisions.

[4] SA Unions, the Shop, Distributive and Allied Employees Association (SDA) and United Voice have proposed that Option 2 be adopted on the basis that the existing schedules unnecessarily replicate rights and entitlements under the Fair Work Act 2009 and could be deleted, with any operative provisions placed into the body of the relevant modern awards. The SDA and United Voice also provided an analysis 2 of the replicated provisions and the operative clauses that could be inserted into the body of the General Retail Industry Award 2010 and the Aged Care Award 2010, respectively.

[5] In light of the various initiatives undertaken by the Commission to remove duplication from modern awards as part of the 4-yearly review, we consider that the potential to rationalise the number or extent of part-day public holiday schedules should be further assessed. We are also mindful of the need to provide some ongoing certainty to parties around this issue.

[6] To that end, Commissioner Hampton will convene a conference of interested parties to explore this approach on behalf of the Full Bench.

[7] In the circumstances, we would favourably consider any agreed variations to simplify the relevant provisions of the relevant modern awards. In the absence of agreement, it is likely that the Full Bench will consider applying Option 1 so as to ensure certainty for all parties whilst any ongoing consideration of the provisions is undertaken.

[8] Details of the conference, and an invitation for parties to comment on the concept advanced by the SDA and United Voice, will be issued shortly.

VICE PRESIDENT

1 [2018] FWCFB 3516.

2 Appended to the submission of SA Unions dated 6 July 2018.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case before the Fair Work Commission, the parties involved are primarily the Australian Industry Group, the Australian Hotels Association, SA Unions, the Shop, Distributive and Allied Employees Association (SDA), and United Voice. The dispute centres around the handling of part-day public holiday provisions in modern awards, specifically the scheduling of these provisions. The Commission was reviewing these provisions as part of its 4-yearly review process.

The legal issues before the court were whether to continue the existing part-day public holiday schedules, which have operated for six years, or to convene a conference to explore if separate schedules are necessary and to determine the appropriate provisions. The court considered the submissions from the parties, including the suggestion from the Australian Industry Group and the Australian Hotels Association to continue the existing schedules due to the absence of significant issues, and the proposal from SA Unions, the SDA, and United Voice to adopt a different approach by convening a conference to explore the need for separate schedules and appropriate provisions. The court noted the potential for rationalising the number or extent of part-day public holiday schedules to remove duplication from modern awards.

The court decided to convene a conference to explore the proposed approach on behalf of the Full Bench. Commissioner Hampton will lead this conference and explore whether the part-day public holiday provisions could be rationalised. The court expressed a willingness to consider any agreed variations to simplify the relevant provisions of the modern awards. In the absence of agreement, the court indicated that it would likely continue the existing schedules to ensure certainty for all parties while the ongoing consideration of the provisions is undertaken. The details of the conference, including an invitation for parties to comment on the concept advanced by the SDA and United Voice, will be issued shortly.

Pending the outcome of the conference, the court may issue further determinations to vary the relevant modern awards to ensure ongoing certainty for all parties involved. The court's decision demonstrates its commitment to rationalising modern awards and reducing duplication, while also maintaining certainty for the parties affected by the part-day public holiday provisions.

Part-day public holidays

FURTHER STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established