United Voice v SkyCity Adelaide Pty Ltd T/A Adelaide Casino

[2016] FWC 9258

[2016] FWC 9258

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

United Voice
v
SkyCity Adelaide Pty Ltd T/A Adelaide Casino
(C2016/7365)

COMMISSIONER PLATT ADELAIDE, 23 DECEMBER 2016

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

Background

[1] On 15 December 2016, United Voice lodged an application pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute in accordance with the dispute settlement procedure in the Skycity Adelaide Casino/United Voice Enterprise Agreement 2014 (the Agreement).

[2] The dispute relates to the employees of Skycity Adelaide Pty Ltd T/A Adelaide Casino (Adelaide Casino) who are covered by the Agreement.

[3] The matter in dispute is which days are Public Holidays in respect of Christmas Day and Proclamation Day in 2016.

[4] The matter was listed for hearing on 16 December 2016. United Voice was represented by Mr Simon Blewett and Mr Ian Colgrave of Counsel appeared on behalf of the Adelaide Casino. Permission was granted pursuant to s. 596(2) of the Act.

[5] Clause 19 of the Agreement allows the Commission to deal with disputes by mediation, conciliation, recommendation or arbitration. No issue was taken with respect to the Commission’s jurisdiction to hear the dispute. In light of the history of the matter, the parties sought the Commission proceed to arbitrate the dispute.

The Dispute

[6] The dispute concerns Christmas Day in 2016 and which days are to be regarded as a public holiday under the Agreement. There is no factual dispute in this matter, this is a question of interpretation and as a result no evidence was presented.

[7] United Voice assert that where Christmas Day falls on a Sunday, both the Sunday and the following day are public holidays.

[8] Adelaide Casino, assert that where Christmas day falls on a Sunday the Monday will act as the substitute public holiday.

Industrial framework

[9] The Agreement provides for the treatment of public holidays:

“CLAUSE 43 • PUBLIC HOLIDAYS

43.1 The parties acknowledge that the nature of the Employer's workplace, including its operational requirements, contemplates that team members may be required to work on public holidays. The Employer may require permanent team members to work on a public holiday by incorporating the public holiday into the team member's roster in accordance with Clause 35 of this Agreement.

43.2 Full-time team members who would otherwise have been required to work on a public holiday, but who are not required to work because it is a public holiday will be paid 7.6 hours at the ordinary rate of pay or, at the team member's request (if applicable) the team member will not be paid for that day and instead one (1) day with pay will be added to the team member's annual leave accrual.

41.3 Part-time team members who would otherwise have been required to work on a public holiday, but who are not required to work because it is a public holiday will be paid six (6) hours at the ordinary rate of pay or, at the team member's request (if applicable) the team member will not be paid for that day and instead six (6) hours with pay will be added to the team member's annual leave accrual.

43.4 The Employer may request casual team members to work on a public holiday by notifying the request in conjunction with the provision of a roster.

43.5 A team member requesting a change in the roster so as not to work on a public holiday must have reasonable grounds for requesting that change in the roster. The team member must raise, with the Employer at the earliest practicable opportunity upon notification of the roster, that the team member has reasonable grounds to request a change in the roster.

43.6 The following public holidays are acknowledged under this Agreement:

New Year's Day
Australia Day
Adelaide Cup Day
Good Friday
The day after Good Friday
Easter Monday
ANZAC Day
Queen's Birthday
Labour Day
Christmas Day (25 December)
Proclamation Day/Boxing Day

43.7 Each permanent team member shall be paid at the rate of double time and a half for all time worked on the above public holidays save and except for the day after Good Friday which is to be paid at the rate of pay ordinarily applicable for work performed on that day of the week.

43.8 When Christmas Day (December 25) falls on a weekend day and a public holiday is declared on some other day in lieu, such other day shall be deemed to be a public holiday for the purpose of this Clause in lieu of 25 December.

43.9 In a year when 25 December falls on a weekend and a public holiday is declared on some other day in lieu, team members shall be paid at the rate of double time and a half for all time worked on the day declared as a public holiday in lieu.

43.10 A permanent team member shall be paid an ordinary day's pay for all of

the above public holidays other than The Day After Good Friday and Sundays, if the team member is not rostered to work on that day Provided that in the case of a part-time team member, this Sub-clause will only apply if the public holiday is observed on a day that, if not for the public holiday, would otherwise have been an ordinary working day for the team member.

CLAUSE 44- CHRISTMAS DAY FALLING ON A SATURDAY OR SUNDAY

44.1 Applicability

Despite any other provisions in the Agreement when Christmas Day falls on a Saturday or Sunday and the declared Christmas Day public holiday is a day other than the actual day (that is, the Christmas Day public holiday has been substituted for another day), the following arrangements will apply but only for permanent team members who do not work a standard Monday to Friday week. Team members employed to work the standard week of Monday to Friday will be paid in accordance with the existing Public Holiday provisions of this Agreement.

44.1.1 Actual day means a Saturday or Sunday that is a Christmas Day but the declared public holiday for the Christmas Day has been gazetted for another day.

44.1.2 Substitute day means the day that is gazetted a public holiday in lieu of the public holiday for Christmas Day falling on a Saturday or Sunday.

44.2 Full-time team members

44.2.1 A team member rostered and not required to work on the actual day will be paid for that day at ordinary rates but will not be entitled to the substitute day;

4.2.2 A team member rostered and required to work on the actual day will be entitled to:

(a) in addition to the normal Saturday or Sunday payment (an appropriate), and

(b) the substitute day as a holiday. However, where the substitute dayfalls on a non-working day, the team member is entitled to either are an additional day’s pay or an additional day’s leave with pay.

44.3 Part-time team members

44.3.1 A team member rostered and not required to work on the actual day will be paid for that day at ordinary rates but will not be entitled to the substitute day.

44.3.2 A team member rostered and required to work on the actual day will be entitled to:

(a) the payment described in 44.2.2(a); and
(b) another day, which may or may not be the substitute day, as a holiday, or payment at ordinary rates for an additional day of equal length.

44.3.3 If the benefits of 44.3.1 or 44.3.2 apply, a team member who works on

the substitute day will be paid at ordinary time rates for such day.

[10] Clause 5 of the Agreement deals with its interaction with the National Employment Standards (NES):

“CLAUSE 5- RELATIONSHIP TO AWARDS AND NATIONAL EMPLOYMENT STANDARDS

5.1 Award

a. In this clause:

"Awards" means the Hospitality Industry General Award 2010 Joinery and Building Trades Award 2010, Timber Industry Award 2010 and Manufacturing and Associated Industries and Occupations Award 2010 as varied from time to time.

b. Where a provision in the ''Award" is more beneficial to an Employee, the Award provision will prevail over this Agreement to the extent that the Award provision provides a more favourable outcome for the Employee.

5.2 National Employment Standards (NES)

a. In accordance with section 61 of the Fair Work Act 2009 where the NES is more beneficial to an Employee, the NES will prevail over this Agreement to the extent that the NES provides a more favourable outcome to the Employee.

[11] The interaction between the Act and State and Territory laws is dealt with in ss. 22 and 26 of the Act:

“26 Act excludes State or Territory industrial laws

(1) This Act is intended to apply to the exclusion of all State or Territory industrial laws so far as they would otherwise apply in relation to a national system employee or a national system employer.

…

27 State and Territory laws that are not excluded by section 26

…

27(1) Section 26 does not apply to a law of a State or Territory so far as:

(b) the law is prescribed by the regulations as a law to which section 26 does not apply; or

(c) the law deals with any non-excluded matters; or

(d) the law deals with rights or remedies incidental to: (i) any law referred to in subsection (1A); or

(ii) any matter dealt with by a law to which paragraph (b) applies; or

(iii) any non-excluded matters.

27(2) The non-excluded matters are as follows:

…

(j) declaration, prescription or substitution of public holidays, except in relation to the rights and obligations of an employee or employer in relation to public holidays…

…

29 Interaction of modern awards and enterprise agreements with

State and Territory laws

29 (1) A modern award or enterprise agreement prevails over a law of a

State or Territory, to the extent of any inconsistency.

29(2) Despite subsection (1), a term of a modern award or enterprise agreement applies subject to the following:

(a) any law covered by subsection 27(1A);

(b) any law of a State or Territory so far as it is covered by paragraph 27(1)(b), (c) or (d).

29(3) Despite subsection (2), a term of a modern award or enterprise agreement does not apply subject to a law of a State or Territory that is prescribed by the regulations as a law to which modern awards and enterprise agreements are not subject.

[12] Section 55 of the Act prescribes the interplay between the NES and Modern Awards or Enterprise Agreements:

“55 Interaction between the National Employment Standards and a modern award or enterprise agreement

National Employment Standards must not be excluded

55(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

55(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.

55(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

55(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

55(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). 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

55(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)

55(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

56 A term of a modern award or enterprise agreement has no effect to the extent that it contravenes section 55.”

[13] Section 115 of the Act defines a public holiday

“115 Meaning of public holiday

The public holidays

115(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

115(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

115(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).

Substituted public holidays for award/agreement free employees

115(4) An employer and an award/agreement free employee may 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).

Note: This Act does not exclude State and Territory laws that deal with the declaration, prescription or substitution of public holidays, but it does exclude State and Territory laws that relate to the rights and obligations of an employee or employer in relation to public holidays (see paragraph 27(2)(j)). (see paragraph 27(2)(j)).

[14] The Holidays Act 1910 (SA) (Holidays Act) details how Public Holidays which fall on a Sunday are to be considered:

“3—Days fixed as holidays

(1) The days mentioned in Schedule 2 will be public holidays and bank holidays but—

(a) when a day mentioned in Part 2 of Schedule 2 falls on a Saturday, the following Monday will be a public holiday instead of that day and that day and the following Monday will be bank holidays; and
(b) when a day mentioned in Part 2 of Schedule 2 falls on a Sunday, that day and the following Monday will be public holidays and bank holidays.”

[15] Christmas Day is a day mention in Part 2 of Schedule 2 of the Holidays Act

Submissions

[16] In support of their position United Voice’s submitted that:

• section 115(1)(a) of the Act details certain Public Holidays as part of the NES;
• section 115(1)(b) provides for further public holidays to be declared or prescribed by a law of the State as a Public Holiday;
• section 3 and Schedule 2 of the Holidays Act has the effect of declaring Christmas Day as a public Holiday;
• section 3(1)(b) of the Holidays Act further provides that where Christmas Day falls on a Sunday, that day and the following Monday (26 December) will be public holidays;
• section 55 of the Act provides that an Enterprise Agreement must not exclude the NES or any provision of the NES;
• section 56 of the Act provides that a term of an Enterprise Agreement has no effect to the extent it contravenes Section 55 of the Act;
• the above approach was endorsed by the Federal Court in Woolworths Limited v Shop Distributive and Allied Employees Association; 1

• clause 43.6 of the Agreement specifies Public Holidays and includes Christmas Day but does not include an additional day in the event that a Christmas Day falls on a Sunday;

• the effect of the NES and the Holidays Act is to provide an additional public holiday in 2016, as Christmas Day falls on a Sunday, and that in so far as the Agreement does not provide that day the NES will override the terms of the agreement; and

• clause 44.1 of the Agreement does not apply as the Public Holiday on Monday 26 December is an additional day and not a substitution for Christmas Day.

[17] Adelaide Casino’s position is summarised as follows:

• section 26 of the Act provides that the Act in so far as it applies to a national system employer, excludes State Industrial laws (as defined on s.26(2));
• section 29(1) of the Act provides that an enterprise agreement prevails over a law of the State to the extent of any inconsistency, subject to s.29(2) of the Act;
• section 29(2) provides that despite s.29(1) of the Act, a term of a modern award or enterprise agreement applies subject to any law of a State so far as it is covered by ss.27(1)(b),(c),or (d);
• paragraph 27(1)(c) provides that s.26 does not exclude certain State laws including laws that deal with “non-excluded matters,” as defined in s.27(2);
• non-excluded matters as defined by s.27(2) of the Act includes at paragraph (j) any“declaration, prescription or substitution of public holidays, except in relation to the rights and obligations of an employee or employer in relation to public holidays;”
• in this case, clause 44.1 (and sub clauses) of the Agreement deals with substitution arrangements which fall within the exclusion “in relation to the rights and obligations of an employee or employer in relation to public holidays” and thus by virtue of s.29(1) override the state law - being the Holidays Act; Clause 44.1 has the effect of providing certain entitlements (Clause 44.2 and 44.3) where Christmas day falls on a Sunday and a substitute day is declared; and
• the above approach is consistent with the approach of Commissioner Hampton in SDA v Coles. 2

Discussion

[18] The principles to be applied to the interpretation of enterprise agreements were detailed by the Full Bench of the Commission in The Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd. 3

The effect of the Holidays Act is such that where Christmas day falls on a Sunday in any year, an additional Public Holiday on the following day has been declared or prescribed 4 and, where Christmas day falls on a Saturday, the following Monday will be a public holiday instead of the Saturday.5 It appears that the Holidays Act provides for a substitute day.

[19] In 2016 Christmas Day falls on a Sunday and by virtue of s.3(1)(b) of the Holidays Act, both Sunday 25 December 2016 and Monday 26 December 2016 will be public holidays. The 26 December is an additional day not a substitute day.

[20] Section 115(1)(b) of the Act results in the additional day provided by the Holidays Act becoming a public holiday for the purposes of the NES.

[21] Clause 43.6 of the Agreement lists the public holidays acknowledged under the Agreement. Whilst it does not acknowledge the additional day that will occur on 26 December 2016, this additional day forms part of the NES by virtue of s.115 (1)(b) of the Act and as a result of s.55 and s.56 of the Act, will be a Public Holiday.

[22] I am unable to accept that clause 44 of the Agreement can operate to exclude the additional day on 26 December 2016, it is clearly focussed on the topic of substitute days which is not the case in this dispute.

[23] I do not believe that section 27(2)(j) of the Act operates in such a manner as to remove the entitlement to the additional days provided by the Holidays Act. Section 27(2)(j) preserves the rights of States (or Territories) to declare, prescribe or substitute public holidays, and then allows Awards and enterprise agreements to regulate rights and obligations (such as the rate of pay) in relation to public holidays to the exclusion of the State (or Territories).

[24] In respect of s27(2)(j), the subject matter of this dispute is about the capacity for the State to declare or prescribe a public holiday, specifically an additional public holiday, not about the rights or obligations of employers or employees in relation to public holidays (for example penalties applicable to a public holiday).

[25] As a result of my rejection of the submission that the additional day is a substitute day within the meaning of the Act or clause 44.1.2 of the Agreement, clauses 43.8, 43.9 and 44.1 of the Agreement have no application to the matter before me.

[26] I find that Christmas Day - Sunday 25 December 2016 and Monday 26 December 2016 are to be regarded as Public Holidays under the NES and the Agreement.

[27] It should be noted that the flow-on effects of my decision, that 26 December 2016 is a public holiday were not fully argued before me. I note that clause 43.7 of the Agreement provides a rate of pay for the days detailed in clause 43.6 and that the additional day on 26 December 2016 is not detailed. I also note that clause 5 of the Agreement preserves the more beneficial provisions of the Hospitality Industry General Award 2010, and that clause 33.2 of that Award deals with payment for Public Holidays and appears to refer to all public holidays resulting from the NES. If the parties require further assistance in this regard I will relist the matter.

COMMISSIONER

Appearances:

S Blewett, on behalf of the Applicant.

I Colgrave, with permission, on behalf of the Respondent.

 1 [2013] FCAFC 151.

 2   [2015] FWC 8975.

 3   [2014] FWCFB 7447.

 4   Holidays Act 1910 (SA) s.3(1)(b).

 5   Ibid, s.3(1)(a).

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