STATEMENT

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

4 yearly review of modern awards—Public holidays
(AM2014/301)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 3 MARCH 2015

4 yearly review of modern awards – public holidays.

[1] A Statement issued on 17 March 2014 outlined that Public Holidays would be listed as a common issue to be dealt with as part of the 4 yearly review of modern awards (the Review). Conferences have been held on 17 November 2014, 12 December 2014 and 20 February 2015 to determine the scope of the Public Holidays common issue and to discuss timetabling arrangements. The purpose of this Statement is to provide further information concerning the scheduling of the proceedings about these issues.

[2] The proposals relating to public holidays can be separated into three categories: the union claims, the employer claims and the part-day public holiday issue. Each category is dealt with below.

Part-day public holidays

[3] A decision dealing with part-day public holidays was issued on 12 November 2014. 1 The decision deals with provisions of various modern awards as they apply to part-day public holidays which have been proclaimed for Christmas Eve and New Year’s Eve in South Australia. This issue has been the subject of various interim decisions since 20122 in which multiple modern awards were varied to include an additional schedule dealing with part-day public holidays. There are a number of different versions of this schedule. In the decision of 12 November 2014, it was noted that the issue would be dealt with comprehensively in the Review as this would enable the Commission to fully review and consider part-day public holiday provisions in the context of the public holiday clauses, and other modern award provisions, more generally.

[4] There are two aspects related to the part-day public holidays issue in the Review. The first is the settlement of the final conditions relating to part-day public holidays in modern awards. The second issue concerns the penalty rate to be applied to part-day public holidays.

[5] A number of parties at the 20 February 2015 conference expressed the view that the interim arrangements currently in place for the part-day public holidays should be renewed for the forthcoming December period, with the substantive matter deferred until 2016 for hearing.

[6] Commissioner Hampton will convene a conference of interested parties to discuss interim arrangements for part-day public holidays that occur in December 2015. This issue will be addressed as soon as practicable so all parties involved have certainty about the applicable arrangements well before the end of 2015.

[7] The Australian Hotels Association (AHA) are proposing to have paragraphs from Schedule H 3 of the Hospitality Industry (General) Award 2010 (the Hospitality Award) inserted into the modern award. This proposal is to be discussed at the conference convened by Commissioner Hampton, including how it is proposed that this matter be heard and determined.

[8] Restaurant and Catering Industrial seek to vary the part-day public holiday penalty rate in the Restaurant Industry Award 2010 (the Restaurant Award). As this relates to the Restaurant Award only, this claim will be dealt with in the award stage of the review. The Restaurant Award is being dealt with in Group 4 of the award stage and this issue will be addressed after the completion of the Penalty Rates case.

Employer claims

[9] The AHA, the Accommodation Association of Australia (AAA) and the Motor Inn, Motel and Accommodation Association (MIMA) are proposing a penalty rate for the eight public holidays listed at s.115(1) of the Fair Work Act 2009 (the Act) and a different, lower, penalty rate for any additional days, or part-days, declared or prescribed under a law of a State or Territory to be public holidays. It has been submitted that this case should be determined in the Penalty Rates matter (AM2014/305), and there appears to be a measure of agreement between the parties that this issue be determined in that matter.

[10] Clubs Australia Industrial are seeking changes to the public holidays clause in the Registered and Licensed Clubs Award 2010. It is envisaged these claims will be dealt with as part of the Public Holidays common issue.

Union claims

[11] Proposals related to public holiday provisions in various modern awards have been filed by the Shop, Distributive and Allied Employees Association (SDA), the Australian Manufacturing Workers’ Union (AMWU), the Health Services Union of Australia (HSU) and the Australian Nursing and Midwifery Federation (ANMF) (collectively, the union claims). There are two broad types of proposals: the non-working day claims and the weekend public holidays claim.

[12] The SDA claim specifically seeks the inclusion of the following clause in a number of awards, including the General Retail Industry Award 2010 and the Hair and Beauty Industry Award 2010:

“This subclause applies to full time employees, and to part time employees who work an average of five days per week.

If a public holiday or a part-day public holiday falls on a day an employee is not rostered to work they shall be entitled to receive by mutual agreement:

a) Another day or part-day off in lieu; or

b) An equivalent day or part-day’s pay; or

c) One extra day or part-day added to his or her annual leave.

This subclause shall not apply to public holidays falling on a Saturday or Sunday (except where they are substituted to another day) nor to part-day public holidays of less than eleven hours.”

[13] In correspondence dated 25 February 2015, Australian Business Industrial (ABI) and the NSW Business Chamber (NSWBC) submitted that the SDA’s claim is likely to have a bearing upon separate proceedings being run with respect to penalty rates for public holidays in the retail and hair and beauty industries. It is said that if the penalty rates and public holidays matters are run separately and the SDA public holidays claims (and other claims related to public holidays) are heard and determined prior to the penalty rates matter, then multiple and inconsistent findings may be made. ABI and NSWBC submit that it would be more efficient for these matters to be considered sequentially commencing with the penalty rates matter.

[14] Interested parties are asked to comment on the matters outlined in this Statement, and on the proposal made by ABI and the NSWBC in their correspondence dated 25 February 2015, by no later than 4.00pm on Tuesday 10 March 2015. Comments should be sent to amod@fwc.gov.au.

[15] A further conference will be held at 9:30am on Friday, 13 March 2015 to discuss the matters contained in this Statement. The conference will be held in Sydney and a video link to Melbourne will be provided.

PRESIDENT

1 [2014] FWCFB 7830.

2 [2012] FWAFB 10738; [2013] FWCFB 8983.

3 2014 Part-day public holidays.

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