PUBLIC HOLIDAYS - CHRISTMAS DAY ARRANGEMENTS

[2018] FWC 5819

[2018] FWC 5819

FAIR WORK COMMISSION

REPORT TO THE FULL BENCH

Fair Work Act 2009

s.156 - 4 yearly review of modern awards

PUBLIC HOLIDAYS - CHRISTMAS DAY ARRANGEMENTS

(AM2014/301)

COMMISSIONER HAMPTON ADELAIDE, 17 SEPTEMBER 2018

Report to the Full Bench – 4 yearly review of modern awards – Public Holidays – Nurses Award 2010 and other awards – Christmas day arrangements.

1. What this report is about

1. This Report concerns the issue of whether the approach to Christmas Day arrangements applying in the Nurses Award 2010 (Nurses Award) should be reflected into other modern awards operating in those sectors of industry where that award currently applies. In general terms, those arrangements[1] mean that where 25 December falls on a weekend and a substitute public holiday occurs (rather than an additional public holiday), the public holiday penalty for the actual (substituted) public holiday is effectively shared across the two days concerned.[2]

1. The Full Bench previously issued a Decision[3] on 2 March 2018 which sets out much of the background of this matter. I was requested by the Full Bench to convene a conference involving interested parties to assess whether the concept had support and was deserving of further consideration.

1. The process leading to the conference of the parties

1. I convened a conference on 14 September 2018. The following parties attended:

·   Health Services Union of Australia (HSU);

·   Private Hospital Industry Employer Associations (PHIEA);

·   The Australian Industry Group (Ai Group);

·   Australian Business Industrial and NSW Business Chamber (ABI);

·   Aged and Community Services Australia and Leading Aged Services Australia (the Aged Care Employers); and

·   Australian Nursing and Midwifery Federation (ANMF).

1. In the lead up to the conference, I issued a Statement[4] providing some further background to the matter and inviting submissions.

1. Submissions in response were made by the Aged Care Employers[5] and the PHIEA.[6] PHIEA’s submissions included a concept as to how the approach applying in the Nurses Award (sharing the relevant public holiday penalty across the two days) could be applied more generally.

1. The positions advanced by the parties

1. The concept advanced by the PHIEA also attracted some support from ABI and the Aged Care Employers; however, none of these organisations was particularly advocating for the concept to be adopted by the Commission in the other relevant modern awards.

1. Ai Group did not support the concept or the variation of the modern awards concerned. This was based upon the contention that the scenario upon which the provision is based would not occur until 2021 and it was uncertain as to whether there would be substitute public holidays (as opposed to additional public holidays) in any of the States or Territories at that time. In addition, Ai Group expressed reservations as to whether it could be said that any such variations were necessary within the meaning of the modern awards objective.[7]

1. The HSU and ANMF also each indicated that it would not support the concept on the basis that it preferred the full public holiday penalty to be paid on the actual public holiday (and on 25 December).

1. A number of parties raised the prospect that the concept would not necessarily be cost-neutral depending upon the staffing arrangements applying on the original day (25 December) and the actual public holiday.

1. The full positions are set out in the transcript of the conference that will shortly be published on the Commission’s website.

1. Further proceedings

1. There is no significant support for the concept and none of the parties participating in this process are advocating for the change. Although there may be some merit in the concept, there does not appear to be any indication from employers or employee organisations that the present differential arrangements between the modern awards are creating any practical or industrial concerns. In that context I note that the public holiday arrangments, and the related annual leave provisions, are different as between the Nurses Award and most of the other modern awards operating within the sector. On that basis, even if the concept was applied there would still be differences between the awards operating in workplaces concerned.

1. Further, the underpinning assumption, that the concept would be largely cost-neutral to the employers, may also need to be tested by some probative evidence if the concept was to be further considered by the Commission.

1. In these circumstances, it does not appear to be necessary or appropriate for the Full Bench to further consider this matter as part of this 4 yearly review of modern awards. I note also that a party with an interest in a modern award may make an application to vary a modern award, if sought, as part of this Review.

COMMISSIONER

Appearances:

R Liehaber of the Health Services Union of Australia.

L Hepworth of the Private Hospital Industry Employer Associations.

R Bhatt of the Australian Industry Group.

S Moody of Australian Business Industrial and NSW Business Chamber.

A McCarthy of the Australian Nursing and Midwifery Federation.

A Nally of the Aged and Community Services Australia and Leading Aged Services Australia.

Hearing details:

2018
Sydney with video links to Melbourne and Brisbane.
14 September.

[1] Clause 32.1 of the Nurses Award.

[2] This provision applies only in businesses that operate seven days a week – clause 32.1(b).

[3] [2018] FWCFB 4.

[4] [2018] FWC 3530 on 21 June 2018.

[5] 20 July 2018.

[6] 13 July 2018.

[7] Section 134 of the Fair Work Act 2009.

Printed by authority of the Commonwealth Government Printer

<PR700437>