1
[2013] FWCFB 2168
DECISION
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Part 2 of Schedule 5, item 6—Review of all modern awards (other than modern enterprise awards
and State reference public sector modern awards) after first 2 years
Modern Awards Review 2012 - Public Holidays
(AM2012/37, AM2012/79, AM2012/80, AM2012/82, AM2012/85, AM2012/87,
AM2012/132, AM2012/134, AM2012/172, AM2012/177, AM2012/178, AM2012/179,
AM2012/193, AM2012/196, AM2012/200, AM2012/201, AM2012/211, AM2012/215,
AM2012/240, AM2012/245, AM2012/279, AM2012/280, AM2012/281, AM2012/282)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT SMITH
COMMISSIONER HAMPTON MELBOURNE, 12 APRIL 2013
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 - public
holiday provisions in various awards - not persuaded a sufficient case made out to support
substantive claims - merit in some proposals for additional flexibility - remitted to single
Members.
CONTENTS Page Paragraph
1. Introduction 5 1
2. The Relevant Claims Referred To This Full Bench 6
2.1 The ACTU Claims Relating To Multiple Modern Awards 6 7
2.2 Hospitality Industry (General) Award 2010 7 12
2.3 General Retail Industry Award 2010 8 14
2.4 Food, Beverage and Tobacco Manufacturing Award 2010 8 15
2.5 Fast Food Industry Award 2010 8 16
2.6 Hair and Beauty Industry Award 2010 9 17
2.7 Nurses Award 2010 9 18
2.8 Social, Community, Home Care and Disability Services
Industry Award 2010 9 19
AUSTRALIA FAIR WORK COMMISSION
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2.9 Other public holiday applications 9 20
3. Additional Comments On The Scope of Evidence In
Relation to Public Holidays 10 22
4.The Substantive Public Holidays Claims 10
4.1 The ACTU Model Provisions Relating to Multiple Modern
Awards 10 26
4.2 Other Claims Related to Specific Awards 26 98
5. Conclusions 39 198
ABBREVIATIONS
ACE Aged Care Employers
ACT-CCI ACT and Region Chamber of Commerce and Industry
ACTU Australian Council of Trade Unions
AEU Australian Education Union
AHA Australian Hotels Association
Ai Group Australian Industry Group
AIRC Australian Industrial Relations Commission
ANF Australian Nursing Federation
APESMA The Association of Professional Engineers, Scientists and Managers,
Australia
ARA Australian Retailers Association
ASU Australian Municipal, Administrative, Clerical and Services Union
AWU The Australian Workers’ Union
AWUQ Australian Workers’ Union of Employees, Queensland
BIAQ Baking Industry Association Queensland - Union of Employers
BMIAA Baking Manufacturers Industry Association of Australia
CEPU Communications, Electrical, Electronic, Energy, Information, Postal,
Plumbing and Allied Services Union of Australia
CFMEU Construction, Forestry, Mining and Energy Union
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Commission Fair Work Commission
CPSU CPSU, the Community and Public Sector Union
Fast Food Award Fast Food Industry Award 2010
FWA Fair Work Australia
FW Act Fair Work Act 2009 (Cth)
General Retail
Award
General Retail Industry Award 2010
Hair and Beauty
Award
Hair and Beauty Industry Award 2010
HBIA Hair and Beauty Industry Association
Hospitality Award Hospitality Industry (General) Award 2010
June 2012 Full
Bench Decision
Modern Awards Review 2012 [2012] FWAFB 5600
MGA Master Grocers Australia
MUA The Maritime Union of Australia
NAPSA Notional agreement preserving State awards
NES National Employment Standards
NRA National Retailers Association
Nurses Award Nurses Award 2010
Penalty Rates Full
Bench decision
Modern Awards Review 2012 - Penalty Rates [2013] FWCFB 1635
PHIEA Private Hospital Industry Employer Associations
RDO Rostered day off
SACS Award Social, Community, Home Care and Disability Services Industry
Award 2010
SDA Shop, Distributive and Allied Employees’ Association
Transitional
Provisions Act
Fair Work (Transitional Provisions and Consequential Amendments)
Act 2009 (Cth)
Transitional Review Modern Awards Review 2012
USU United Services Union
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VECCI Victorian Employers’ Chamber of Commerce and Industry
Victorian Shops
Award
Shop Distributive and Allied Employees Association - Victorian Shops
Interim Award 2000
WR Act Workplace Relations Act 1996 (Cth)
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1. Introduction
[1] The Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
(the Transitional Provisions Act) provides that the Fair Work Commission1 must conduct a
review of all modern awards2 as soon as practicable after 1 January 2012 (the Transitional
Review).
[2] This decision deals with various matters associated with public holidays that have
been referred to this Full Bench as part of that review.
[3] The principal legislative provision in respect of the Transitional Review is Item 6 of
Schedule 5 to the Transitional Provisions Act:
“6 Review of all modern awards (other than modern enterprise awards and State
reference public sector modern awards) after first 2 years
(1) As soon as practicable after the second anniversary of the FW (safety net provisions)
commencement day, FWC must conduct a review of all modern awards, other than modern
enterprise awards and State reference public sector modern awards.
Note: The review required by this item is in addition to the annual wage reviews and 4 yearly
reviews of modern awards that FWC is required to conduct under the FW Act.
(2) In the review, FWC must consider whether the modern awards:
(a) achieve the modern awards objective; and
(b) are operating effectively, without anomalies or technical problems arising
from the Part 10A award modernisation process.
(2A) The review must be such that each modern award is reviewed in its own right.
However, this does not prevent FWC from reviewing 2 or more modern awards at the same
time.
(3) FWC may make a determination varying any of the modern awards in any way that
FWC considers appropriate to remedy any issues identified in the review.
Note: Any variation of a modern award must comply with the requirements of the FW Act
relating to the content of modern awards (see Subdivision A of Division 3 of Part 2-3 of the
FW Act).
(4) The modern awards objective applies to FWA making a variation under this item, and
the minimum wages objective also applies if the variation relates to modern award minimum
wages.
(5) FWC may advise persons or bodies about the review in any way FWC considers
appropriate.
(6) Section 625 of the FW Act (which deals with delegation by the President of functions
and powers of FWC) has effect as if subsection (2) of that section included a reference to
FWA’s powers under subitem (5).”
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[4] The legislative context for the Transitional Review was comprehensively dealt with in
a Full Bench decision of 29 June 2012 (the June 2012 Full Bench decision)3. We adopt that
decision and have applied it to the matters before us.
[5] Much of the background, including the award modernisation process undertaken by
the AIRC, the nature of the Transitional Review, the observations made about the evidence,
broad factual findings and the relevant legislative framework are set out in a recent decision
by the Full Bench in Modern Awards Review 2012 - Penalty Rates4 (the Penalty Rates Full
Bench decision). We adopt those observations in determining the matters before us. In
particular we note the following statement by the Full Bench:
“[117] The need to advance probative evidence in support of an application to vary a
modern award is particularly important in the context of the Transitional Review. The
Transitional Review does not involve a fresh assessment of modern awards
unencumbered by previous Tribunal authority, and, as we set out in section 2 of this
decision, many of the aspects of the applications before us were the subject of
consideration by the AIRC in the award modernisation process.”
[6] In determining the matters before us we have given particular consideration to whether
the modern awards concerned achieve the modern awards objective provided in s.134 of the
FW Act. Further, we have also considered whether the awards are operating effectively,
without anomalies or technical problems arising from the Part 10A award modernisation
process.
2. THE RELEVANT CLAIMS REFERRED TO THIS FULL BENCH
2.1 THE ACTU CLAIMS RELATING TO MULTIPLE MODERN AWARDS
[7] The Australian Council of Trade Unions (ACTU) and some affiliated unions5 have
made applications dealing with three aspects of modern award provisions relating to public
holidays. These applications are intended to have general application as part of a model clause
in relation to a large number of modern awards.6
[8] The first element of the ACTU claim seeks to vary the public holidays entitlement for
employees working non-standard hours. The effect of the variation is to provide an
entitlement to public holidays in circumstances where an employee is not regularly working
Monday to Friday.
[9] The ACTU also seeks to include a provision in the relevant modern awards to the
effect that a Rostered Day Off (RDO) must not be taken on a public holiday. That is, an
employee who, by the arrangement of their ordinary hours of work, is entitled to an RDO, is
entitled to take the RDO on an ordinary working day. The RDO must not be scheduled on a
public holiday. Where a holiday is prescribed or declared, after the employee has been
notified of the RDO, and that holiday falls on the employee’s RDO, the employer must allow
the employee to take the RDO on an alternative weekday.
[10] The third element of the ACTU’s claim seeks to establish a provision in the relevant
modern awards to the effect that an employee working on Christmas Day, in circumstances
where that day falls on a Saturday or Sunday and is not a public holiday within the meaning
[2013] FWCFB 2168
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of the NES, will be paid an additional loading of 50% of their ordinary time rate for the hours
worked on that day and be entitled to the benefit of the substitute day.
[11] In general terms, the ACTU proposals also applied to each of the specific awards that
are before us and discussed below. In most cases, specific provisions were sought in each
award however we have considered those as part of our determination of the ACTU model
provisions.7
2.2 HOSPITALITY INDUSTRY (GENERAL) AWARD 2010
[12] The following variations have been sought in relation to this award:
Clause 32.2(c): Christmas Day - provide that the payment of the additional loading
of 50% payable if a non-casual employee works on Christmas Day, when it falls on a
weekend, is only applicable if that day is not the prescribed public holiday.
(Sought by AHA, VECCI)
Clauses 32 and 37: Additional Public Holidays - provide that should there be an
additional public holiday provided for Australia Day, Anzac Day, Christmas Day,
Boxing Day or New Year’s Day, then only one of the days will attract the public
holiday penalty rate. That day will be agreed between the employer and the majority
of employees and if no agreement is made then the penalty will be payable on
26 January, 25 April, 25 December, 26 December and 1 January.
(Sought by AHA)
Clause 37: Part-Day Public Holidays: - provide that for the purposes of this
provision, a ‘day’ represents the actual time worked by the full-time employee on the
public holiday.8
(Sought by AHA)
[13] We also note that the Accommodation Association of Australia made an application
that sought to reduce the effective public holiday penalty rate in this award for casual
employees. That matter was dealt with in the Penalty Rates Full Bench decision.9
2.3 GENERAL RETAIL INDUSTRY AWARD 2010
[14] The following variations have been sought in relation to this award:
Clause 29.4(d): Public Holidays falling on weekends - provide that when a public
holiday falls on a weekend and an additional public holiday is declared or gazetted, the
penalty will only apply to the actual (original) public holiday.
(Sought by NRA, MGA10, BIAQ, ARA and ACT-CCI11)
Clause 29.4(d): Public Holiday penalties - provide the right to payment for all
employees of 250% (275% for casuals) for work on a public holiday and time off in
lieu or additional annual leave to operate (only) where sought by an employee.12
(Sought by SDA)
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New Clause 34.2: Public Holidays - provide the right for an employee to elect to
work on a public holiday and the payment of penalty rates for a minimum number of
hours should the employee choose to work.
(Sought by SDA)
New Clause 34.4: Public Holidays and RDOs - provide that where a public holiday
falls on an employee’s RDO, the employee will have the right to another day off in
lieu, equivalent days pay or an additional day added to annual leave.13
(Sought by SDA)
2.4 FOOD, BEVERAGE AND TOBACCO MANUFACTURING AWARD 2010
[15] The following variation has been sought in relation to this award:
Clause 37: Public Holidays falling on weekends - provide that when a public
holiday falls on a weekend and an additional public holiday is declared or gazetted, the
penalty will only apply to the actual (original) public holiday.
(Sought by BIAQ)
2.5 FAST FOOD INDUSTRY AWARD 2010
[16] The following variation has been sought in relation to this award:
Clause 30: Public Holidays falling on weekends - Variations to provide for
alternative methods of remunerating work performed on public holidays and to clarify
that where a public holiday falls on a weekend and an additional public holiday is
declared or gazetted, then the public holiday loading will only apply on the actual
public holiday.
(Sought by NRA)
2.6 HAIR AND BEAUTY INDUSTRY AWARD 2010
[17] The following additional variations have been sought in relation to this award:
Clause 35: Public holiday falling on weekend - for alternative methods of
remunerating work performed on public holidays and to clarify that where a public
holiday falls on a weekend and an additional public holiday is declared or gazetted,
then the public holiday loading will only apply on the actual public holiday.
(Sought by HBIA)
Clause 35: Right to work on a public holiday - to provide for the right of employee
to elect whether or not to work on a public holiday and the payment of penalty rates
for a minimum number of hours.
(Sought by SDA)
Clause 35: Right to work alternate day/equivalent pay/additional day’s annual
leave - to provide that where a public holiday falls on an employee’s RDO, the
employee will have the right to another day off in lieu, equivalent days pay or an
additional day added to annual leave.14
(Sought by SDA)
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2.7 NURSES AWARD 2010
[18] In addition to the relevant ACTU model clauses as adapted to this award, the ANF
proposed a variation to clause 32.1 of this award to establish the right for an employee to elect
to be paid their ordinary rate of pay for the public holiday and have a day added to annual
leave when the employee works on a public holiday, as an alternative form of compensation.
2.8 SOCIAL, COMMUNITY, HOME CARE AND DISABILITY SERVICES
INDUSTRY AWARD 2010
[19] The ASU has sought to vary this award to include a provision dealing specifically with
seven day shiftworkers when a public holiday falls on an RDO.
2.9 OTHER PUBLIC HOLIDAY APPLICATIONS
[20] There are a number of other applications that were referred to this Full Bench however
the applicant parties did not advance merit arguments before us, at least with respect to the
following awards:
Animal Care and Veterinary Services Award 2010 (AM2012/11; AM2012/217);
Local Government Industry Award 2010 (AM2012/168)15;
Plumbing and Fire Sprinklers Award 2010 (AM2012/202); and
Road Transport (Long Distance Operations) Award 2010 (AM2012/223).
[21] We do not deal with these matters as part of this decision and each matter will be
referred to single Members of the Commission, who are otherwise dealing with the review of
the relevant awards, for determination.
3. ADDITIONAL COMMENTS ON THE SCOPE OF EVIDENCE IN RELATION
TO PUBLIC HOLIDAYS
[22] We referred earlier to the Penalty Rates Full Bench decision and the observations
made about the nature of the evidence provided as part of the Transitional Review.
[23] We further note that in relation to retail and related industries, much of the evidence
went to the issue of the voluntary nature of work on public holidays under legislation,
primarily in NSW and in the ACT, and under former awards and collective industrial
instruments negotiated by the SDA.
[24] There is also some evidence regarding the impact of public holiday penalty rates upon
employers in the retail, fast food and hair and beauty industries and the ANF provided some
evidence dealing with employee preference for public holiday compensation arrangements.
[25] There is little or no evidence dealing with other aspects of the public holiday
applications before us.
4. THE SUBSTANTIVE PUBLIC HOLIDAYS CLAIMS
4.1 THE ACTU MODEL PROVISIONS RELATING TO MULTIPLE MODERN
AWARDS
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[26] It is appropriate to deal firstly with the broad approach urged upon us by the parties in
relation to these matters generally before turning to those model provisions sought by the
ACTU and certain affiliates in relation to a large number of modern awards.
[27] The ACTU contended that the proposed model provisions were based on principles
established in the series of four Full Bench decisions16 of the then AIRC, with respect to
public holidays which have collectively been regarded as the Public Holiday Test Case.
[28] The broad proposition advanced by the ACTU is that the incorporation of key
principles from the Public Holiday Test Case into modern awards, that currently do not reflect
them, is necessary to achieve the modern awards objective within the meaning of item 6(2)(a)
of Schedule 5 of the Transitional Act. Further, the lack of uniformity in the application of the
relevant Public Holiday Test Case principles to modern awards generally is an “anomaly"
arising from the Part 10A Award Modernisation process within the meaning Item 6(2)(b).
[29] The ACTU has also submitted that the principles established by the Public Holiday
Test Case were not applied comprehensively across those awards which were subject to the
Part 10A award modernisation process, and the issue of the application of these principles was
not a matter which was subject to any broad or vigorous debate during that process. It
contended that as a result, its application should not be seen as one which requires a “fresh
assessment”, or one in which “the substance of the variation sought has already been dealt
with by the Tribunal in the Part 10A process”.17
[30] These submissions, and those made by the ACTU in relation to the detail of the
proposed model provisions, were supported by the SDA, United Voice, ANF, AMWU, AWU,
MUA, CFMEU, AWUQ, ASU and USU. As outlined earlier, some of these unions also
advanced specific proposals in relation to particular modern awards to adopt variations largely
on the same basis as contended by the ACTU with modifications to recognise the particular
circumstances of the relevant award. Some of these submissions also referred to elements of
the award provisions applicable to the relevant industry prior to the award modernisation
process.
[31] The employer organisations appearing in these matters opposed each of the proposals
sought by the ACTU. Ai Group contended that the Public Holiday Test Case was almost two
decades ago and under a different legislative regime with different legislative criteria
underpinning the terms of awards. As such, the decisions were not relevant to the Transitional
Review and should not be considered to be an additional consideration beyond those
articulated in sub-item 6(2).
[32] Ai Group submitted that there was a substantial difference in the objects and
framework of the FW Act when compared to the legislative context under which the Public
Holiday Test Case was determined including a greater focus on flexibility and productivity,
and upon the NES having a substantial role to play in establishing the safety net.
[33] Ai Group further contended that even if the ACTU was able to establish that there was
an anomaly in the pre-modern federal award system relating to the Public Holiday Test Case,
which it did not accept, this would not be an anomaly which is appropriately remedied
through application of sub-item 6(2)(b) of the Transitional Act. That is, the consideration is
[2013] FWCFB 2168
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beyond the statutory power as it is not an anomaly “arising from the Part 10A award
modernisation process”.
[34] Ai Group also referred to the award modernisation request18 and what it saw as the
absence of reference to the Public Holiday Test Case and the substantial reliance upon the
NES provisions. In terms of the application of the test case principles, the Ai Group
contended that no pre-modern awards were varied in similar terms to that now sought by the
ACTU and that to ignore the provisions of those awards would not be appropriate in this
context given the award modernisation process and outcomes.
[35] ACCI submitted that cogent reasons should be supported by cogent evidence prior to
the Commission exercising its discretion under Item 6(3) and contended that the ACTU had
failed to indicate what were the significant changes of circumstances which would warrant a
different outcome as part of this Transitional Review.
[36] ACCI also submitted that:
“The AIRC Full Bench cannot be said to be unaware of former test case decisions when
creating modern awards, including relevant Public Holiday Test Cases, when it
considered existing federal awards and NAPSA instruments. The fact that the relevant
Public Holiday Test Case decisions did not flow-on to the majority of federal awards
(and therefore modern awards) is not the issue to be addressed during the two year
review. It is a matter of record as to which federal awards were amended to flow on
particular test case decisions of the AIRC. The Part l0A process considered the
instruments which were in existence at the time it created modern awards and its
statutory functions were discharged upon creating modern awards.”19
[37] ABI contended that the Public Holiday Test Case was not broadly implemented by the
AIRC and was not adopted across the various State systems operating at that time. It also
submitted that Division 10 Public Holidays Part 2-2 of the FW Act was a comprehensive
scheme of prescription creating a uniform set of minimum conditions dealing with when
public holidays fall, public holiday substitution and when an employee receives the holiday
with pay for the purposes of the safety net. ABI further contended that without a substantial
case based on specific and relevant evidence within a particular industry there is no warrant to
supplement provisions simply to provide more generous arrangements, especially if those
arrangements are largely predicated on the Public Holiday Test Case.
[38] The Australian Government submitted that given the scope of the Transitional Review
and the modern awards objective, it did not support proposals to reduce public holiday
protections in modern awards. The Australian Government also submitted that, in considering
what is a fair and relevant safety net for the purposes of the modern awards objective, the
Commission should take into account previous test case decisions concerning public holiday
protections and to this extent supported the ACTU submissions that test case decisions are an
important consideration in determining a fair and relevant safety net.
[39] The Australian Government commented that where complexity was created through
the declaration of additional and substitute days for public holidays, this is the result of
decisions by State and Territory governments and remains a matter for those governments.
However, it submitted that applications seeking to mitigate the effect of the declaration of
additional public holidays by State and Territory governments through a reduction in penalty
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rates prescribed in modern awards for public holidays generally were not an appropriate
policy response. Further, it contended that it was not appropriate to reduce the penalty rates
paid in respect of the significant, longstanding and nationally recognised public holidays set
out in the NES, whether to mitigate the effect of the declaration of additional or substitute
days or not.
[40] Before dealing with the detail of the specific applications, it is appropriate to consider
the context in which the modern awards were made and the statutory context in which they
operate in terms of public holidays.
[41] The broader context for the Transitional Review was outlined in detail in the Penalty
Rates Full Bench decision20 and we adopt those observations in our consideration of these
matters.
[42] The relationship between the NES and the modern awards is established, in part, by
s.55 and s.56 of the FW Act, which provide:
“55 Interaction between the National Employment Standards and a modern award or
enterprise agreement
National Employment Standards must not be excluded
(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
(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.
Note: In determining what is permitted to be included in a modern award or enterprise agreement
by a provision referred to in paragraph (a), any regulations made for the purpose of section 127
that expressly prohibit certain terms must be taken into account.
(3) The National Employment Standards have effect subject to terms included in a modern award
or enterprise agreement as referred to in subsection (2).
Note: See also the note to section 63 (which deals with the effect of averaging arrangements).
Ancillary and supplementary terms may be included
(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.
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Note 1: Ancillary or incidental terms permitted by paragraph (a) include (for example) terms:
(a) under which, instead of taking paid annual leave at the rate of pay required by section 90, an
employee may take twice as much leave at half that rate of pay; or
(b) that specify when payment under section 90 for paid annual leave must be made.
Note 2: Supplementary terms permitted by paragraph (b) include (for example) terms:
(a) that increase the amount of paid annual leave to which an employee is entitled beyond the
number of weeks that applies under section 87; or
(b) that provide for an employee to be paid for taking a period of paid annual leave or
paid/personal carer’s leave at a rate of pay that is higher than the employee’s base rate of pay
(which is the rate required by sections 90 and 99).
Note 3: Terms that would not be permitted by paragraph (a) or (b) include (for example) terms
requiring an employee to give more notice of the taking of unpaid parental leave than is required
by section 74.
Enterprise agreements may include terms that have the same effect as provisions of the National
Employment Standards
(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).
Effect of terms that give an employee the same entitlement as under the National Employment
Standards
(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.
Note: For example, if the award or agreement entitlement is to 6 weeks of paid annual leave per
year, the provisions of the National Employment Standards relating to the accrual and taking of
paid annual leave will apply, as a minimum standard, to 4 weeks of that leave.
Terms permitted by subsection (4) or (5) do not contravene subsection (1)
(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).
Note: A term of a modern award has no effect to the extent that it contravenes this section (see
section 56). An enterprise agreement that includes a term that contravenes this section must not be
approved (see section 186) and a term of an enterprise agreement has no effect to the extent that it
contravenes this section (see section 56).
56 Terms of a modern award or enterprise agreement contravening section 55 have no effect
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A term of a modern award or enterprise agreement has no effect to the extent that it contravenes
section 55.”
[43] It is clear that the terms of a modern award (or an enterprise agreement) may replicate
the terms of the NES, which will then operate in parallel, and may also deal with matters that
are expressly delegated to modern awards by the NES. In addition, modern awards may also
include terms that are ancillary or incidental to the operation of an entitlement of an employee
under the NES or which supplement the NES, provided that the effect of those terms is not
detrimental to an employee in any respect, when compared to the NES.
[44] Further, the terms of a modern award must not contravene the terms of the NES and
any such provision is of no effect.
[45] The provisions of the NES which deal with public holidays are as follows:
“114 Entitlement to be absent from employment on public holiday
Employee entitled to be absent on public holiday
(1) An employee is entitled to be absent from his or her employment on a day or part-day that is a
public holiday in the place where the employee is based for work purposes.
Reasonable requests to work on public holidays
(2) However, an employer may request an employee to work on a public holiday if the request is
reasonable.
(3) If an employer requests an employee to work on a public holiday, the employee may refuse the
request if:
(a) the request is not reasonable; or
(b) the refusal is reasonable.
(4) In determining whether a request, or a refusal of a request, to work on a public holiday is
reasonable, the following must be taken into account:
(a) the nature of the employer’s workplace or enterprise (including its operational
requirements), and the nature of the work performed by the employee;
(b) the employee’s personal circumstances, including family responsibilities;
(c) whether the employee could reasonably expect that the employer might request work
on the public holiday;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other
compensation for, or a level of remuneration that reflects an expectation of, work on the
public holiday;
(e) the type of employment of the employee (for example, whether full-time, part-time,
casual or shiftwork);
(f) the amount of notice in advance of the public holiday given by the employer when
making the request;
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(g) in relation to the refusal of a request—the amount of notice in advance of the public
holiday given by the employee when refusing the request;
(h) any other relevant matter.
115 Meaning of public holiday
The public holidays
(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
(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
(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
(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
[2013] FWCFB 2168
16
relate to the rights and obligations of an employee or employer in relation to public holidays (see
paragraph 27(2)(j)).
116 Payment for absence on public holiday
If, in accordance with this Division, an employee is absent from his or her employment on a day or
part-day that is a public holiday, the employer must pay the employee at the employee’s base rate
of pay for the employee’s ordinary hours of work on the day or part-day.
Note: If the employee does not have ordinary hours of work on the public holiday, the employee is
not entitled to payment under this section. For example, the employee is not entitled to payment if
the employee is a casual employee who is not rostered on for the public holiday, or is a part-time
employee whose part-time hours do not include the day of the week on which the public holiday
occurs.”
[46] In terms of the broad approach to these matters it is also important to appreciate that
provisions relating to public holidays were considered in the award modernisation process.
[47] The AIRC Full Bench indicated its general approach to a number of common issues,
including its approach to terms relating to public holidays and the NES in the following
terms:21
“A number of requests were made that we supplement the public holiday entitlements in
the NES by including in awards some days that are observed as public holidays but not
gazetted as such. We have decided against that course as it is apparent that the NES
governs the question of the number of public holidays to which employees should be
entitled.”
[48] During the second stage of the Part 10A process, the Full Bench responded to the
ACTU’s submissions that the AIRC “has so far taken a view of its power to supplement the
terms of the NES which is too restrictive”, and indicated that it would adhere to the views it
previously articulated in its 19 December 2008 decision:22
“We think that we should give proper weight to the Parliament’s decision to regulate
minimum standards in relation to the matters covered by the NES. It cannot have been
Parliament’s intention that the Commission could make general provision for higher
standards. We accept, however, that there may be room for argument about what
constitutes supplementation in a particular case.”
[49] It is also relevant that the comparative schedules prepared by the AIRC for each stage
of the Part 10A process included a range of public holiday clauses derived from a diversity of
federal awards and NAPSA instruments.
[50] For our part we agree with ACCI’s submission that the fact that the Public Holiday
Test Case decision was not inserted in all modern awards during the award modernisation
process is not an anomaly within the meaning of Item 6(2)(b), as asserted by the ACTU, but
rather a conscious decision on the part of the AIRC having regard to the various industrial
instruments considered at that time.
[51] Further, as submitted by Ai Group, there is no proper basis for the assertion that
uniformity of award provisions dealing with public holidays was an intended outcome of the
award modernisation process. Any lack of uniformity in the application of the Public
[2013] FWCFB 2168
17
Holidays test case decision was a feature of the federal award system well before the
commencement of the Part 10A award modernisation process.
[52] We turn now to consideration of the three substantive proposals for variations within
the context of the model provisions proposed by the ACTU. As outlined earlier, the ACTU
claims were supported by various unions, some of whom made related claims in relation to
specific modern awards.
(i) Public Holidays falling on Non-Working Day
[53] The ACTU seeks variations to the public holidays entitlement for employees working
non-standard hours in the following form:23
Public Holidays falling on Non-Working Days
1. This section applies to:
a) full time (non-casual) employees; and
b) part-time (non-casual) employees who are normally rostered to work 5 days
or more per week averaged over a four week cycle.
2. When a public holiday falls on a day the employee would not be rostered to work in
any event, the employee must receive either:
a) an additional day’s wages;
b) an alternative day off at the base rate of pay, to be taken within 28 days; or
c) an additional day of annual leave.
3. The compensation in sub-clause (2) must be calculated according to the number of
ordinary hours rostered per day, or if this is not fixed, the average number of ordinary
hours worked per day in the preceding 28 days.
4. The employee is entitled to elect the form of compensation they will receive in
accordance with the provisions of this clause.
5. This clause does not apply to part-day public holidays.
6. To avoid doubt, this clause does not apply where a public holiday falls on a
Saturday or Sunday. Where a public holiday falls on a Saturday or Sunday and an
additional or substitute holiday is prescribed by state or territory law, this clause
applies to the additional or substitute day.
[54] The basis of the claim as advanced by the ACTU is as follows:
“[The provision] relates to ensuring that full-time employees who do not regularly work
a five day, Monday to Friday week and part-time (non-casual) employees who work
5 days or more per week averaged over a four week cycle are adequately and fairly
compensated where a public holiday falls on a day when the employee would not
ordinarily be working.
Employees who fall into this category include, but are not limited to, workers who
work regularly on Saturday and Sunday, workers with variable rosters, continuous
[2013] FWCFB 2168
18
shift workers and employees who work for nine days per fortnight or 19 days in each
of four weeks (for example where workers have a system of rostered days off,
although this particular circumstance is dealt with directly in the second proposed
model clause).”24
[55] The general effect of the proposed provision would be that a full-time or part-time
employee who normally work five days per week would be entitled to compensation for a
(weekday) public holiday that fell on a non working day for that employee. The compensation
would be in the form of an additional day’s pay, an additional paid day off or an additional
annual leave day. Particular arrangements are also contemplated for weekend public holidays
and part-day public holidays would not be covered as part of the model provision.
[56] The ACTU submitted that in the Public Holiday Test Case, the Full Bench recognised
the difficulties which may face such “non-standard” employees in the following terms:
“There are problems in applying a standard provision to the circumstances of employees
whose working arrangements differ from the norm. One which was brought to our
notice concerns employees who normally work on Saturdays. The substitution
provision [for public holidays falling on weekends] may affect such persons harshly.
We take as an example a year wherein Christmas Day falls on a Saturday. A person
who works on Christmas Day will receive the amount normally paid for Saturday
work; and if he or she does not work the substitute day, the higher rate prescribed for
work on that day will be irrelevant.”25
[57] Further, the ACTU contended that the AIRC established the principle that where a
prescribed holiday falls upon a day when a non-standard employee would not be working in
any event, “[f]airness requires that the worker not be disadvantaged by that fact”26and
articulated the principle that the appropriate compensation to ensure that the safety net for
non-standard employees, where a public holiday falls on a day which they would not be
working in any event, was as follows:
an alternative day off; or
an addition of one day to annual leave; or
an additional day’s wages.
[58] The ACTU argued that these principles should be applied to the relevant modern
awards consistent with s.134(1) of the FW Act with three additions to the model provision
which it submitted improve upon, but were consistent with, the Public Holiday Test Case
principles, namely:
(a) the model provision applies to “part-time (non-casual) employees who work
5 days or more per week averaged over a four week cycle” in addition to full-time
employees who do not regularly work a five day, Monday to Friday week;
(b) where an employee elects to take an alternative day off, there is a requirement
that this day be taken within 28 days of the prescribed public holiday; and
(c) employees are entitled to elect the form of compensation they will receive.
[59] The employers opposed the proposed provision and contended that the ACTU’s model
provision would be inconsistent with s.116 of the FW Act and various part-time and other
[2013] FWCFB 2168
19
provisions contained in numerous modern awards. Further, the employers contended that, if
implemented, the proposal would operate very unfairly for employers and would be expensive
and unproductive.
[60] ACCI contended that whilst the NES may be supplemented in limited circumstances,
this proposed provision was akin to prescribing an additional public holiday, in circumstances
where the employee would not, under the NES or modern award, be entitled to the public
holiday. This was said to be different to allowing a modern award to include terms providing
for an employer and employee to agree on a substitution of public holidays.
[61] Ports Australia submitted that the model clause was contrary to s.116 of the FW Act in
that it seeks to provide public holiday entitlements to employees who are not ordinarily
rostered to work on public holidays. That is, this is not merely “ancillary or incidental” to the
operation or entitlement of an employee to public holidays under the NES or intended to
“supplement” the NES. To make such a variation would, it suggested, be inconsistent with
s.116 and hence contrary to s.55 of the FW Act.
[62] The Public Holiday Test Case remains a relevant consideration for present purposes,
but there is considerable force in Ai Group’s submission that it was determined in a different
statutory context. In particular, the scheme of the present Act places reliance upon a relatively
comprehensive set of minimum standards provided by the NES and the role of the modern
awards is intended to operate in that context.
[63] Whether or not this particular element of the ACTU model provision is ancillary or
incidental to the public holidays entitlements in the NES, in our view it could be considered to
supplement the NES within the meaning of s.55(4)(b) of the FW Act. We also note that
s.139(1)(c) of the FW Act contemplates modern awards having provisions concerning
“arrangements for when work is performed, including hours of work, rostering, notice
periods, rest breaks and variations to working hours.” Provided that the provision is not
detrimental to an employee in any respect of any NES entitlement, the adoption of the model
provision is a matter of discretion having regard to the nature of this Transitional Review and
the merit of the proposal.
[64] The AIRC and FWA Full Benches did not apply all elements of the Public Holiday
Test Case decisions to many of the modern awards during the award modernisation process.
However, certain elements were included having regard to the former awards and NAPSAs
applying in each industry and to the legislative framework at the time of the award
modernisation process.
[65] The Penalty Rates Full Bench decision comprehensively considered the award
modernisation process and its consequences for the Transitional Review.27 This included the
‘swings and roundabouts’ approach having regard to the terms of awards and NAPSAs
applying in the relevant industries and the need for parties seeking to change the modern
awards to demonstrate cogent reasons for such. Those observations are apposite to the matters
presently before us.
[66] While this aspect of the ACTU’s claim is not without merit it does constitute a
substantial variation of the award safety net and in our view is more appropriately dealt with
in the 4 yearly review of modern awards provided for in s.156 of the FW Act. The
[2013] FWCFB 2168
20
Transitional Review is quite separate from, and narrower in scope than, the 4 yearly reviews.
As the June 2012 Full Bench observed:
“[91] It is important to recognise that we are dealing with a system in transition. Item 6
of Schedule 5 forms part of transitional legislation which is intended to facilitate the
movement from the WR Act to the FW Act. The Review is a “one off” process
required by the transitional provisions and is being conducted a relatively short time
after the completion of the award modernisation process. The transitional arrangements
in modern awards continue to operate until 1 July 2014. The fact that the transition to
modern awards is still occurring militates against the adoption of broad changes to
modern awards as part of the Review. Such changes are more appropriately dealt with
in the 4 year review, after the transition process has completed. In this context it is
particularly relevant to note that s.134(1)(g) of the modern awards objective requires
the Tribunal to take into account:
“the need to ensure a simple, easy to understand, stable and sustainable modern
award system for Australia . . .”
[67] On the material before us there is insufficient information to adequately assess the
impact of the proposed change. The same may be said of the ACTU’s proposed model clause
as a concept. Further, we consider that the practical operation of the proposed model
provision to different patterns of employment as provided in some of the modern awards is
uncertain and may well create unintended consequences.
[68] We have concluded that this element should not be adopted as a model provision or
included in the named awards as part of this Transitional Review.
(ii) RDO not to be taken on Public Holiday
[69] The ACTU submitted that the second proposed model provision28 was designed to
ensure that a full-time or part-time employee whose RDO falls on a public holiday will be
entitled to the benefit of the public holiday in addition to a rostered day off on an alternate
working day.
[70] The model provision as proposed during the course of this matter is as follows:
“Rostered Day Off must not be taken on public holiday
An employee who, by the arrangement of their ordinary hours of work, is entitled to a
rostered day off, is entitled to take the rostered day off on an ordinary working day.
The rostered day off must not be scheduled on a public holiday. Where a holiday is
prescribed or declared, after the employee has been notified of the RDO, and that
holiday falls on the employee’s RDO, the employer must allow the employee to take
the RDO on an alternative weekday.”
[71] The ACTU contended that the intent of the provision was consistent with the Public
Holiday Test Case as workers who are entitled to RDOs may fall into the broad category of
non-standard workers.
[2013] FWCFB 2168
21
[72] In that context, the ACTU suggested that workers who have regularly rostered RDOs
may fall within the scope of the model clause which deals with public holidays falling on non-
working days. However, “in the interests of providing for a clear and simple safety net and
avoiding any unnecessary disputation or ambiguity”, the ACTU proposed that public holidays
which fall on an RDO should be dealt with more directly.
[73] The employers opposed the proposed provision and contended that the ACTU’s
proposed clause would be problematic in the context of the non-standard hours proposal and
was inconsistent with appropriate provisions already contained in some modern awards.
[74] ACCI noted that the variation proposed would potentially apply to modern awards
which do not provide for rostered days off. Whilst some modern awards do feature RDO
substitution clauses, it was suggested that they were determined by the AIRC during the
award modernisation process on an industry by industry (or occupational) basis, having
regard to the historical terms and conditions which applied under a broad range of federal
awards and NAPSAs.
[75] ABI contended that there was no evidence to support the likelihood of RDOs actually
being scheduled on public holidays and suggested that this aspect of the claim was more
about how the 38 hour week operates under an award rather than public holidays.
[76] We note that there are presently different arrangements in modern awards dealing with
the establishment and operation of RDOs and to some extent, public holidays. For reasons set
out earlier, cogent reasons are required to significantly modify the present modern awards as
part of this Transitional Review.
[77] There is no evidence before us as to the extent of concerns or the nature of present
arrangements in workplaces regarding RDOs and public holidays that demonstrate a need to
adopt modified arrangements within the modern awards.
[78] Given the diversity of the existing arrangements in modern awards in relation to this
issue we are not persuaded, on the limited material before us, that the benefits of the ACTU’s
proposal (in terms of the impact on the low paid) outweigh the increased regulatory burden
upon business that would flow from the variation. In other words, on the material before us
we are not persuaded that the balance of considerations that the modern awards objective
requires us to take into account favours granting the proposed variation in the context of the
Transitional Review.
[79] We have also concluded that this element should not be adopted as a model provision
or included in the named awards as part of this Transitional Review.
(iii) Christmas Day - payment when 25 December is not a public holiday
[80] The third element of the ACTU’s model provision29 was as follows:
“Christmas Day Loading
1. An employee working on Christmas Day in circumstances where that day falls on a
Saturday or Sunday and is not a public holiday within the meaning of the NES will be
[2013] FWCFB 2168
22
paid an additional loading of 50% of their ordinary time rate for the hours worked on
that day and be entitled to the benefit of the substitute day.
2. This loading is cumulative with the rates prescribed in Clause [X] – Penalty Rates”
[81] The ACTU proposal is to the effect that an employee working on Christmas Day, in
circumstances where that day falls on a Saturday or Sunday and is not a public holiday within
the meaning of the NES, will be paid an additional loading of 50% of their ordinary time rate
for the hours worked on that day and be entitled to the benefit of the substitute day.
[82] As part of the NES, s.115(1) of the FW Act establishes that Christmas Day (25
December) is a public holiday however ss.115(2) provides that if, under a State or Territory
law, a day or part-day is substituted for a day or part-day that would otherwise be a public
holiday then the substituted day or part-day is the public holiday.
[83] We understand that some State and Territory laws dealing with public holidays
provide for the substitution of the Christmas Day public holiday (when it falls on weekends)
as provided in s.115(2), rather than an additional public holiday. Many of the modern awards
also provide for substitution of public holidays by agreement and make specific arrangements
in each case for the payment of penalties on one and/or both days in that context. It is not
clear whether the claim is intended to also apply to these arrangements given that specific
provisions already operate in such cases.
[84] The basis of the claim, as advanced by the ACTU, was that the additional loading
would reflect the fact that Christmas Day is a day of particular significance to Australians. In
support of that notion it referred to the first decision of the Public Holiday Test Case where
the Full Bench said:
“Although the leave which employees enjoy under the broad characterisation of ‘public
holidays’ is a significant benefit and, as such, ought not to be excluded from the
‘safety net’ concept, the safety net standard goes more, we think, to the quantum of
leave than to the specification of days. There are, however, some days which have
special significance in community mores - a significance which the awards may well
reflect. These days are Good Friday, Anzac Day and Christmas Day.” 30
[85] The ACTU further contended that the fourth decision of the Public Holiday Test Case,
the AIRC recognised the special nature of Christmas Day in terms of the substitution
arrangements that were to be applied.
[86] The ACTU submitted that the principle of an additional Christmas Day loading was
intended to be broadly applied by the Full Bench in the Public Holiday Test Case, but which
was not a prevailing standard in the underlying award-based transitional instruments which
were the subject of the Part 10A award modernisation process.
[87] Ai Group and other employer interests generally opposed this provision on the basis
that it had already been dealt with by the AIRC and FWA during the award modernisation
process and submitted that there is no error or anomaly arising out of the Part 10A award
modernisation process. As a result, they submitted that there was no basis for a variation to be
made as part of the Transitional Review.
[2013] FWCFB 2168
23
[88] The PHIEA opposed this and the other variations to the existing public holiday
provisions as made by the ACTU and the ANF in relation to awards relevant to their industry.
It however made an alternative suggestion which it contended would recognise the
significance of Christmas Day without adding to the costs of the business. It proposed the
transfer of 50% penalty from the substitute day to the 25th of December and suggest the
following clause:
“Businesses that operate seven days a week shall recognise work performed on the 25th
of December which falls on a Saturday or Sunday and is not a public holiday within
the meaning of the NES with an additional loading of 50% of the employee’s ordinary
time rate for the hours worked on that day. All work performed on the substitute day
by any employee, will receive an additional loading of 50% of the ordinary time rate
for the hours worked on that day instead of the 100% loading which applies to work
performed on other public holidays.”31
[89] It is important to appreciate that in 2010 a Full Bench of FWA considered and rejected
applications to vary a number of modern awards to include an additional penalty where
Christmas Day falls on a weekend and is not a “public holiday”.32
[90] The 2010 Full Bench stated:
“[43] The additional penalty rate where Christmas Day both falls on a weekend and
is not a “public holiday” is a principle established by a Full Bench of the AIRC in the
Public Holiday Test Case decision of 1995. In that decision the Full Bench said:
“[W]e propose in this decision to consider various types of non-standard
arrangements and to articulate principles which we see as being generally
appropriate. Members of the Commission dealing with particular awards will
be expected to apply these principles wherever possible, but may need to adapt
them to specific circumstances...
The ACTU contends that Christmas Day should be regarded differently from
other days which are subject to substitution. A non-standard full-time worker
required to work on the actual day should receive the public holiday rate for
that day, rather than the Saturday or Sunday rate. This, the ACTU argues, is a
proper recognition of the significance of Christmas Day in the lives of many
members of the community. We agree with the underlying contention of the
ACTU but favour a more straightforward prescription. In our opinion, the
employee should receive the Saturday or Sunday payment (as appropriate) plus
a loading of one-half of a normal day's wages for a full day's work. Thus if the
ordinary Sunday rate is double time, the employee who works on Christmas
Day when it is a Sunday will be paid 2.5 times the normal daily rate and be
entitled to the benefit of the substitute day...
In summary, we commend the following principles: ...
(3) that a full-time worker who ordinarily works on a Saturday or Sunday
should be paid at the Saturday or Sunday rate for work performed on the
‘actual’ day when substitution is prescribed, save that when the ‘actual’ day is
[2013] FWCFB 2168
24
Christmas Day the employee should receive a loading of one-half of an
ordinary day's wages . . .
. . . These principles are more fully elaborated above. Although we expect that
they will generally be implemented in the application of safety-net standards,
we acknowledge the diversity of practices that have been in place and
anticipate that the principles pertaining to non-standard working arrangements
will be applied sensitively and flexibly, with due regard to special
circumstances.”
[44] It is apparent the Public Holiday Test Case decision of 1995 commended the
additional penalty rate in respect of Christmas Day as a principle that may need
adaption to specific circumstances. Further, while the Full Bench expected the
principle would generally be implemented, the Full Bench acknowledged there were
pre-existing diverse practices and anticipated the principle would be applied
sensitively and flexibly with due regard to special circumstances.
[45] The additional penalty rate in respect of Christmas Day is not a prevailing
standard in the underlying award-based transitional instruments that previously
covered the employers and employees now covered by the modern Manufacturing
Award, modern Cleaning Award, modern Security Award or modern Nurses’ Award.
[46] In respect of the modern Finance Award, the additional penalty rate where
Christmas Day both falls on a weekend and is not a “public holiday” was specifically
raised during the course of the AIRC proceedings concerning the making of the
modern Finance Award. However, the AIRC did not include it in the modern Finance
Award.
[47] Fair Work Australia’s ability to vary modern awards outside the four yearly
reviews of modern awards is constrained by the Fair Work Act. We do not think the
non-inclusion of the additional penalty rate in respect of Christmas Day in the modern
awards before us can be regarded as an error in the sense intended by s.160 of the Fair
Work Act. We have come to this conclusion having regard to the caution expressed
by the Full Bench in the Public Holidays Test Case decision of 1995 and the other
factors to which we have just referred concerning the absence of a prevailing standard
in respect of the additional penalty rate in the relevant underlying instruments and the
additional penalty rate having been specifically raised previously but not included.
These factors also prevent us from concluding the variations sought by the unions are
necessary to achieve the modern awards objective.
[48] Accordingly, we decline to make determinations varying the modern
Manufacturing Award, modern Cleaning Award, modern Security Award, modern
Nurses’ Award or modern Finance Award to include an additional penalty rate where
Christmas Day both falls on a weekend and is not a “public holiday”.33
[91] The ACTU sought to distinguish the 2010 decision on the basis that it dealt with the
applications pursuant to ss.157 and 160 of the FW Act and that the Transitional Review
provided the Commission with an opportunity to more broadly consider whether the Test
Case principles ought to be implemented in pursuance of the modern awards objective.
[2013] FWCFB 2168
25
[92] The employers contended that as a Full Bench of FWA had already decided that a
Christmas Day loading was not necessary to achieve the modern awards objective pursuant to
s.157 of the FW Act, the decision could not be distinguished from the ACTU’s application in
these proceedings.
[93] It is also relevant to observe that Christmas Day will not fall on a weekend until
December 2016, being a Sunday in that year. This will be some years after the Commission
has conducted the more comprehensive 4 yearly review of all modern awards. In such
circumstances it is unnecessary for us to express a concluded view on this aspect of the
ACTU’s claim. The matter can be reconsidered in the context of the 4 yearly review.
[94] We also note that the AHA and VECCI made a related claim in relation to the
Hospitality Award. Their proposed clause however was said to clarify the intent of an existing
provision (clause 32.2(c)) by making it clear that it operated when the original day was not
prescribed as a public holiday under the NES. That proposal was not intended to change the
substance of the existing provision.34 In our view it is appropriate to clarify the intention of
the current provision and these claims will be referred to Deputy President Smith for
determination.
[95] There was some relevant evidence concerning the circumstances applying under the
Nurses Award and in our view there is some merit in the PHIEA alternative proposal outlined
above.
[96] We will also refer this element of the claims as applying to the Nurses Award to
Deputy President Smith to convene discussions with the relevant parties and to make the final
determination having regard to this decision.
4.2 OTHER CLAIMS RELATED TO SPECIFIC AWARDS
[97] It is convenient to deal with the award-specific claims by reference to the common
issues being addressed.
(i) “ADDITIONAL” PUBLIC HOLIDAYS - Hospitality Award, General Retail Award,
Fast Food Award and Hair and Beauty Award
[98] We turn now to the applications made by the employers in relation to “additional”
public holidays where the original day falls on a weekend.
[99] Although the precise wording of the proposals varied, the applications to vary the
General Retail Award are representative of the claims and seeks the addition of the following
provision to clause 29.4 of that award:
“The entitlements specified in clauses 19.4(i) to 29.4(iii) do not apply where a public
holiday falls on a weekend and an additional public holiday is declared or gazetted in a
State or Territory. In these circumstances the entitlements will only apply on the actual
public holiday and not on any additional day declared or gazetted.”35
[100] The AHA proposal for the Hospitality Award was expressed in the following terms:
[2013] FWCFB 2168
26
“32.1(b) Where two public holidays for Australia Day, ANZAC Day, Christmas Day,
Boxing Day or New Year’s Day are provided for in the NES, only one of the public
holidays for each of Australia Day, ANZAC Day, Christmas Day, Boxing Day or New
Year’s Day shall be paid in accordance with clause 32.1(a). The other public holiday
will be recognized as a public holiday for the purposes of the NES and the Award and
all work performed on that public holiday shall be paid at an employee’s ordinary
hourly rate.
The day on which the public holiday shall be paid at the rate prescribed in clause
32.1(a) shall be agreed to by the employer and the majority of employees.
In the absence of agreement, the following days shall be paid for at the rates of pay
prescribed in clause 32.1(a):
• Australia Day – 26 January
• ANZAC Day – 25 April
• Christmas Day – 25 December
• Boxing Day – 26 December
• New Year’s Day – 1 January
[101] Hence, in relation to each of the four modern awards concerned, a variation was
sought to provide that where a public holiday falls on a weekend and an additional public
holiday is declared or gazetted, the public holiday loading will only apply on the actual public
holiday. In the case of the AHA, it proposed that the arrangement should apply to certain
nominated days and that the day on which the penalty is to be paid would be agreed, with the
actual (original) day being the default position.
[102] The AHA contended that the application of NES provisions in the award have resulted
in skewing of the applicable Public Holiday Test Case decisions. In particular, it submitted
that the Full Bench did not intend its accommodation of State/Territory determined holidays
above the safety net standard to be the basis of double-counting.36
[103] The AHA and other employer interests submitted that the declaration of additional
days, and their treatment as public holidays for the purposes of the award penalty, rather than
substitute days, results in a de facto increase in the number of public holidays established by
the Public Holiday Test Case and has a profound effect on the cost of operating a business.
[104] The ACTU, SDA and other affiliated unions opposed these claims and contended in
effect that the operation of the NES and the present modern awards were consistent with the
scheme of the FW Act and that no basis to change the existing provisions had been
established. They also contended, in effect, that the reference to additional days being
declared or gazetted was problematic and could lead to inequitable outcomes depending upon
the terms of each State and Territory public holiday act.
[105] There is some evidence to support the self evident notion that where additional public
holidays are gazetted or proclaimed by State and Territory laws, it costs more to engage
employees on those days. The evidence suggested that in these circumstances employers may
adjust staffing numbers, utilise non-award employees in family businesses, use a higher
proportion of junior employees, and modify trading hours and services where feasible to
reduce the cost impact of trading on public holidays.
[2013] FWCFB 2168
27
[106] Most State and Territory public holiday legislation provides for substitute or additional
public holidays when certain holidays fall on weekends. In these circumstances, when
considered in the context of the NES, most also recognise both the original and additional
days as public holidays for present purposes. These “additional” public holidays are probably
not gazetted in the sense referred to in some of the employers’ applications. They may
however be proclaimed in the sense that they arise from the operation of the respective
legislation. It is apparent that most of the employers’ applications were intended to deal with
the circumstances where an additional day is established, by whatever means.
[107] However, even on that basis, the operation of the provision as proposed by the
applicant employer organisations would lead to different outcomes depending upon how each
State and Territory act was framed and in our view such an outcome would not be
appropriate.
[108] The import of the AHA application is clearly to operate when both the original public
holiday and the additional day are public holidays for present purposes.
[109] Although the incidence and level of the public holiday penalties is a matter for the
Commission,37 the issue of additional public holidays arises directly from the scheme of the
FW Act and in particular, the NES reliance upon the State and Territory laws to establish the
actual days.
[110] In its Award Modernisation decision38 concerning the making of the priority modern
awards, the Full Bench of the AIRC said in respect of public holidays that:
“[105] A number of requests were made that we supplement the public holiday
entitlements in the NES by including in awards some days that are observed as public
holidays but not gazetted as such. We have decided against that course as it is apparent
that the NES governs the question of the number of public holidays to which
employees should be entitled.”
[111] The conclusions of that Full Bench remain apposite.
[112] This does not mean that the issue of the number and standardisation of public holidays
across Australia is not a legitimate issue. Rather, it is one primarily for the State, Territory
and/or Commonwealth Legislatures.
[113] We are not persuaded that cogent reasons have been established to justify the
variations as sought in relation to the “additional” public holidays as part of this Transitional
Review.
(ii) RIGHT TO ELECT TO WORK ON PUBLIC HOLIDAYS - General Retail Award
and Hair and Beauty Award
[114] The SDA has sought that the General Retail and Hair and Beauty awards be varied to
provide the right for an employee to elect to work on a public holiday. In the case of the Fast
Food award and the Hair and Beauty award, the SDA also seeks a minimum engagement
period for work on public holidays. We deal with this latter aspect separately.
[2013] FWCFB 2168
28
[115] The proposed right to elect would involve the insertion of the following provision into
the relevant awards:
An employee may elect whether or not to work on a public holiday. If an employee
elects to work on a public holiday and the employer agrees they shall be paid at the
rate of 250% (275%for a casual) for all time worked with a minimum payment as for
three hours.39
[116] The SDA contend that the right to elect to work on a public holiday was lost to the
large majority of employees through the award modernisation process and should be restored.
The former rights were said to arise from an award provision in Victoria40 and by well
established work practices in NSW, Victoria and the ACT.
[117] The SDA also contend that most shops in South Australia and Western Australia
cannot open on most public holidays as a result of shop trading hours legislation and the issue
does not arise.
[118] The SDA concedes that this issue was considered as part of the award modernisation
process but contends that the Transitional Review provides an opportunity to deal with the
issue based upon the more detailed and comprehensive material now advanced in support of
the proposal.
[119] The SDA also suggested that “the significant reduction in public holiday entitlements
is unintentional due to the enormous task of award modernisation”; and further that “there
was a misunderstanding as to the key entitlements of retail workers.”41 In that light, it was
submitted that the application made by it concerning this, and the other public holiday
matters, should not seen as one in which the substance of the variation sought has already
been dealt with by the Commission in the award modernisation process.
[120] In terms of the implications of the NES, the SDA contended that there is room for a
provision for employees to elect whether or not to work on a public holiday given the
operation of s.139(l)(c) of the FW Act.
[121] The SDA also suggested that one category of workers under the General Retail award,
shiftworkers under clause 30.3(e), have the right to elect whether or not to work on a public
holiday, and it would be inequitable and anomalous to deny it to the other categories of
workers under the award.
[122] The ARA, NRA, MGA and Ai Group and other employer interests opposed these
claims and argued that there was no evidence to indicate that concerns were held by
employees about the operation of the present provisions or that the NES arrangements were
inadequate. They also contended that the issue had been raised and considered as part of the
award modernisation process and no basis had been demonstrated to justify a change as part
of this Transitional Review.
[123] Over many years in NSW and the ACT, work on a public holiday was generally
considered to be voluntary. This approach is also reflected in most of the industrial
instruments negotiated by the SDA.
[2013] FWCFB 2168
29
[124] Similar arrangements formerly applied in Victoria under the Victorian Shops Award
and under other industrial instruments.
[125] We also accept that in South Australia and Western Australia there are restrictions on
the capacity for shops to trade on public holidays. These restrictions mean that most larger
shops in each State are effectively unable to open on such days and the issue of employees
making an election does not arise. However we note that in these States many smaller and
specialty shops (and large shops more generally depending upon location) covered by the
General Retail Award continue to have the right to trade on public holidays under trading
hours laws.
[126] The NES provisions of the FW Act in s.114 deal comprehensively with the entitlement
to be absent on public holidays and the considerations which attach to that assessment. These
provisions apply to all national system parties, including those subject to the modern awards.
[127] In 2010, a Full Bench of FWA in dealing with seven applications to vary the General
Retail Award, including matters relevant to the applications before us, found:
“Public holidays
[20] The SDA seeks to rationalise the different forms of compensation for work on
public holidays. We do not believe that a case has been made out to support the
variations.
[21] The SDA also seeks an amendment to make it explicit that work on public
holidays is voluntary. Public holidays are generally dealt with by the National
Employment Standards (NES). We have provided limited supplementation to deal
with matters not dealt with in the NES. The variations are opposed. A case has not
been made out that the changes are necessary or appropriately supported by the
wording of existing instruments.”
[128] As outlined above, we accept that the terms of the modern award have altered the
previous arrangements with respect to public holidays. However, the award modernisation
process involved the adoption of many provisions that modified the pre-existing conditions,
some more favourable and some less, in order to establish single modern awards.
[129] Importantly despite the change in approach to public holidays for many parties under
the modern awards, there is no evidence to suggest that the current public holiday provisions
in the relevant modern awards, when considered in the context of the NES, are not sufficient
or appropriate to balance the interests of employees and employers in terms of the election to
work on such days. The evidence provided by the SDA predominately went to the former
regimes and little or no evidence was provided of concerns about the operation of the existing
arrangements.
[130] In relation to the entitlement for an employee to be absent on a public holiday and the
capacity for employers to request employees to work on such days, there is a relatively
comprehensive provision in s.114 of the FW Act. There are various considerations including
those relating to both the personal and business circumstances and a test of reasonableness
applies. There is also the capacity for disputes about such matters to be dealt with through the
relevant dispute resolution procedure found in each award.
[2013] FWCFB 2168
30
[131] We are not persuaded that there is any foundation for the suggestion by the SDA that
the AIRC had misunderstood the (former) key entitlements on public holidays for retail
employees. Nor are we persuaded that cogent reasons have been established to justify the
variations sought concerning the right to elect to work on public holidays as part of this
Transitional Review.
(iii) MINIMUM ENGAGEMENT PERIOD - General Retail Award and Hair and
Beauty Award
[132] As mentioned earlier, the SDA also seeks the inclusion of a minimum engagement
period of three hours for work on public holidays under the General Retail Award and the
Hair and Beauty Award.
[133] Both of the awards establish penalty rates for such work but do not provide a specific
minimum engagement (or payment) period in relation to public holidays. There is however, in
effect, a daily engagement for part-time employees42 and casuals43 of three hours and this
would apply to public holiday work.
[134] Many modern awards do not establish a specific minimum engagement for public
holiday work and the issue is more likely to be significant in relation to part-time and casual
employees, where a minimum effectively already applies as part of the general provisions in
these awards. In terms of the full-time (and all other) employees, the provisions of s.114 of
the FW Act also operate in this respect.
[135] On that basis, and given the absence of any evidence of actual concerns with the
operation of the awards in this regard, we are not persuaded that this aspect of the variations
sought should be granted as part of this Transitional Review.
(iv) PART-DAY PUBLIC HOLIDAYS - Hospitality Award
[136] This matter has been raised by the AHA specifically in relation to the Hospitality
Award. It does however arise more generally given the recent establishment of two additional
part-day public holidays in South Australia. We note also that there are some limited part-day
public holidays in some other States.
[137] As part of this Transitional Review, the Commission acted on its own motion to vary a
number of modern awards on an interim basis to deal with certain ambiguities and
uncertainties that arose from such holidays. The basis for that approach and the outcomes are
evident in the decision of this Full Bench44 and in the reports of Hampton C45 leading to that
point.
[138] With the cooperation of the major parties, some clarification in relation to the issues
arising in the case of part-day public holidays was made. However, given the circumstances,
the variations made only applied to the part-day public holidays occurring over the
Christmas/New Year period 2012-13.
[139] It is evident to us that a more enduring resolution is necessary and appropriate. To that
end, the Commission will convene proceedings of its own motion early in the second half of
[2013] FWCFB 2168
31
this year to consider proposals for specific ongoing provisions dealing with part-day public
holidays within the modern awards, where it is appropriate to do so.
(v) Public Holiday Penalty Rates for casuals
[140] The SDA sought in effect to increase the penalty for casuals on public holidays under
the General Retail Award by the inclusion of the casual loading.
[141] At present, clause 29.4(d) of the General Retail award provides payment at the rate of
an additional 150% for work on public holidays. We note that there are other means of
compensating employees that we will deal with later. The award does not provide for the
casual loading of 25% to be paid in addition to the public holiday loading.
[142] The SDA also proposed certain changes to the method by which the penalty is
prescribed within the award.
[143] The essence of the proposition advanced by the SDA was that the right for all
employees to receive the payment of a 250% payment, based upon the rate that an employee
would otherwise earn, was a right that existed under almost all of the awards operating in the
sector prior to the establishment of the modern award.
[144] In terms of the approach to the specification of the penalty, the SDA submitted that the
public holiday penalty rate should be prescribed as "double time and a half' or "250%" and not
as "an additional 150%". It contended that such a provision was a complete change from all
the previous State and Territory Awards for the retail industry and had unintended
consequences.
[145] The SDA also contended that the standard method of describing the compensation for
work on a public holiday in modern awards is to specify the total payment rather than the
additional rate. This was said to be the case in 83 of the modern awards whereas the
additional penalty form was adopted in only 21 awards.
[146] In relation to other awards in the broader retail environment, the SDA contended that
these established a total rate and that an anomaly existed in that context.
[147] The SDA contended that the difference was important given the number of part-time
employees in the industry. It provided a number of scenarios in its written submission as
illustrations of its concerns.46
[148] The ARA, NRA and MGA opposed this variation on a number of grounds including
its submission that the NES represents a substantial protection and represents a fair safety net
in that regard. The ARA further contended that there was no evidence of any concerns with
the operation of the existing arrangements and the issue was said to have been dealt with
during the award modernisation process.
[149] The approach taken to the establishment of various penalty payments in the award
modernisation process was set out in the Penalty Rates Full Bench decision. This included the
differential treatment of the casual loading and penalties in various awards depending upon
the circumstances including the terms of the former awards and NAPSAs. That decision also
[2013] FWCFB 2168
32
dealt at length with the approach required in the context of this Transitional Review. Much of
that consideration is directly relevant here.
[150] The absence of the casual rate on public holidays under this award does not follow the
approach adopted in other awards cited by the SDA. However, there are other differences in
approach to the inclusion of casual rates amongst these awards which confirm that the AIRC
and FWA Full Benches considered each award as a package having regard to the relevant
considerations. As such we are not persuaded that the issue identified by the SDA is an
anomaly within the meaning of Item 6(2)(b).
[151] In terms of the present reference to the penalty as an additional payment, we do not
consider that the present provision is ambiguous or represents an anomaly. The payment
prescribed is an additional payment. The General Retail Award elsewhere deals with the
interrelationship between different penalty rates. The effect of that being that the higher of the
applicable penalty rates apply where both would otherwise be relevant.
[152] No cogent reasons have been provided to warrant a departure from the provisions
established on this issue as part of the award modernisation process.
[153] No variation to this award will be made regarding this matter as a result of this
Transitional Review.
(vi) ALTERNATIVE METHODS OF REMUNERATING WORK PERFORMED ON
PUBLIC HOLIDAYS - Fast Food Award, Hair and Beauty Award, Nurses Award and
General Retail Award
[154] Various employer applications seek to vary the provisions of the Fast Food and Hair
and Beauty awards by including additional means of compensating employees for work on
public holidays. In particular, they seek to add the options of an equivalent day or time, or
additional annual leave, in lieu of public holiday penalty payment.
[155] In effect, these parties were seeking provisions in line with the approach in clause
29.4(d) of the Retail Award. That clause is set out at paragraph [165] of this decision. For
present purposes it is sufficient to note that the Retail Award provides that work on public
holidays must be compensated by either:
Payments of the public holiday penalty;
An equivalent day or equivalent time off instead without loss of pay; or
An additional day or equivalent time as annual leave.
[156] The existing provisions in the Fast Food Award are as follows:
“30. Public holidays
30.1 Public holidays are provided for in the NES.
30.2 An employer and a majority of employees may agree to substitute another day for
a public holiday. If an employee works on either the public holiday or the substitute
[2013] FWCFB 2168
33
day public holiday penalties apply. If both days are worked, the public holiday
penalties must be paid on one day chosen by the employee.
30.3 Work on a public holiday must be compensated by payment at the rate of 250%
(275% for casual employees).”
[157] The Hair and Beauty Award presently provides as follows:
“35. Public holidays
35.1 Public holidays are provided for in the NES.
35.2 An employer and a majority of employees may agree to substitute another day for
a public holiday. Where an agreement to substitute a day is made the following
applies:
If both days worked—employee paid public holiday on day elected by
employee;
If only actual public holiday worked—public holiday penalty applies; or
If only a substituted day worked—public holiday penalty applies.
35.3 Work on a public holiday must be compensated by payment at the rate of double
time and a half for full-time, part-time and casual employees.”
[158] The NRA contended that the variations sought would enable both employer and
employees greater flexibility to manage rostering and financial pressures during public
holiday periods.
[159] The SDA opposed the claim on the basis that no cogent reasons had been established
to vary the existing provisions.
[160] The capacity for additional flexibility in relation to how the compensation for public
holidays is treated in these particular awards was not a matter that was specifically considered
in the award modernisation process.
[161] Given the absence of substantive evidence on this matter, we would not be prepared to
make a variation that fundamentally altered existing rights and obligations as part of this
Transitional Review. However, we think there is merit in providing some additional agreed
flexibility as to how the compensation for public holidays is treated in these modern awards.
Such an approach would consistent with the modern awards objective.
[162] In our view these proposals warrant further consideration, provided that any additional
options operate by agreement with the employee and employer concerned.
[163] These elements of the claims will be referred to Deputy President Smith to convene
discussions with the relevant parties and to make the final determination having regard to this
decision.
[2013] FWCFB 2168
34
[164] The SDA has also sought that clause 29.4(d) of the General Retail Award be varied to
provide that time off in lieu or additional annual leave is to operate as compensation only
where sought by an employee.
[165] The existing provision is as follows:
“29.4(d) Public holidays
Work on a public holiday must be compensated by either:
(i) payment at the rate of an additional 150%;
(ii) an equivalent day or equivalent time off instead without loss of pay; or
(iii) an additional day or equivalent time as annual leave.
[166] Accordingly, the award presently establishes that payment for the public holiday (at an
additional 150%), time off in lieu, and additional annual leave, are equivalent options for the
compensation of public holiday work.
[167] The SDA contend that the current clause is ambiguous and uncertain in that it is not
clear who has the right to select between options (i), (ii) and (iii) as to the form of
compensation. That is, the employer or the employee or mutual agreement and, if so, what
happens if agreement cannot be reached.
[168] Further, the SDA suggest that it is not clear in respect of options (ii) and (iii) whether
it is “time for time” or time at the penalty rate that is applied or what “equivalent day” or
“equivalent time off'” mean.
[169] The SDA’s proposed revised provision would relevantly read as follows:
29.4(d) Public Holidays
Work on a public holiday must be compensated by payment at the rate of 250%
(275%for a casual).47
Time off in lieu of payment of the penalty rate prescribed for work on a public holiday
pursuant to this clause may be provided if an employee so elects and it is agreed by the
employer.
Such time off in lieu must be taken at a mutually convenient time and within four
weeks of the public holiday or, where agreed between the employee and the employer,
may be accumulated and taken as part of annual/eave.
Time off in lieu must equate to the penalty component of the time worked on the
holiday.
[170] In terms of the substantive issue, the SDA contend that the absolute right of retail
employees to be paid double time and a half on public holidays provided prior to the making
of the modern award, should be re-established.
[2013] FWCFB 2168
35
[171] The SDA also submits that there is an anomaly in that the three awards "spun off"
from the retail award; being the Fast Food Award, the Hair and Beauty Award and the
Pharmacy Industry Award 2010, “provide employees with a right to payment at the rate of
double time and a half for work on a public holiday and the General Retail Award 2010 does
not provide employees with that right.”48
[172] The ARA opposed the claim and contended that the SDA’s application to effectively
remove clauses 29.4(d)(i) and (ii) of the award was a further attempt to revisit matters dealt
with previously by the AIRC and FWA. It further contended that there was no evidence or
submissions that demonstrated cogent reasons to make the change and it should be rejected.
[173] As with many other claims made by parties in this Transitional Review, this issue was
considered by the Commission as part of the award modernisation process. 49 In 2010, the
Commission dealt with an application by the SDA to rationalise the different forms of
compensation for work on public holidays and found that a case had not been made out to
support the variations.50
[174] Although a more comprehensive case was presented on this aspect than was advanced
in the award modernisation process, there is no evidence to indicate that the current provision
is operating in a manner that would not be consistent with the modern awards objective.
Given that it formed part of the package of conditions determined through the ‘swings and
roundabouts’ approach the AIRC adopted during the award modernisation process, we are not
persuaded that the provision should be changed.
[175] There is not prioritisation of the compensation options in clause 29.4(d) and there is no
express provision as to how the election is made. We do not consider that the approach of the
SDA to rely solely on employee election for the “alternative” forms of compensation is
appropriate as part of this review. However, we accept that some clarification as to how the
provision is to be applied in practice may be appropriate. Given that this aspect received very
little attention in the submission of the parties, this element of the claim will be referred to
Commissioner Hampton to determine in accordance with this decision with recourse to the
Full Bench if appropriate.
[176] In relation to the other aspects of the SDA’s claim, we are not persuaded that the
proposed variations to the General Retail Award should be made as part of this Transitional
Review.
[177] For the reasons given, we are not persuaded that these proposed variations to the
General Retail Award should be made as part of this Transitional Review.
[178] The ANF has applied to vary the Nurses Award 2010 to establish the right of an
employee to elect to have a day added to annual leave when the employee works on a public
holiday as an additional form of compensation.
[179] The ANF seeks to add a new subclause after clause 32.1 as follows:
“In the alternative, a full time employee may elect to be paid their ordinary rate of pay
for the public holiday and have one ordinary working day added to their annual/eave
entitlement. A part time employee may elect to be paid their ordinary rate of pay for
[2013] FWCFB 2168
36
the public holiday and have the equivalent hours worked added to their annual/eave
entitlement. The election shall be made in writing at the commencement of each year
and shall not be revocable during that year except with the agreement of the
employer.”
[180] The effect of the proposed new subclause would allow employees who perform work
on a public holiday to either elect to be paid double time (as per the existing clause) or, be
paid single time and have the equivalent hours worked added to their annual leave
entitlement.
[181] The ANF argued that many nurses and midwives prefer the option to have time off as
compensation for working on a public holiday. In addition, it contended that members
regularly raise this matter in consultations concerning enterprise bargaining negotiations and
regard highly the option of having time off instead of full payment for working a public
holiday.
[182] The ANF also contended that similar arrangements were contained in some of the
former awards and NAPSAs operating in this sector prior to award modernisation and that it
is a long standing practice in the health industry for employees to have the option to accrue
additional time off or have equivalent time added to annual leave instead of receiving the full
payment for working a public holiday.
[183] The ANF further contended that the proposed variation was consistent with the
modern awards objective in providing a fair and relevant minimum safety net of terms and
conditions and the fact that this option is commonly included in enterprise agreements also
demonstrates relevance in the industry and therefore is a reason for it to be included in the
safety net applicable to award-dependent nurses.
[184] The employers opposed the variation on the basis that the provision was not
warranted, would create an administrative burden and require employers to find additional
nursing employees to cover this additional time off.
[185] The Aged Care Employers (ACE) submitted that the Nurses Award already provided
nursing employees with a “very generous” entitlement to 5 weeks annual leave (6 weeks for
shiftworkers). Further, the unilateral employee election would allow nursing employees to
elect to have an additional 11 annual leave days added to this generous annual leave
entitlement and as a consequence non-shiftworker nursing employees who take up such an
election may hold a basic entitlement to over 7 weeks annual leave, and shiftworkers to over 8
weeks annual leave.
[186] The ACE also contended that none of the evidence filed in support of the ANF’s claim
supported the variation sought or addressed the additional administrative and cost burdens to
be placed upon employers as a result of the variation being granted.
[187] In terms of the reliance upon the fact that these kind of ‘elections’ have been, and
continue to be, inclusions in enterprise bargaining agreements, the ACE argued that it was not
appropriate to take this into account in varying the award safety net.
[188] Notwithstanding that position, the ACE indicated that it would consent to a variation
to the Nurses Award “enabling an employer and individual employee to agree to allow an
[2013] FWCFB 2168
37
employee who works on a public holiday to elect to have an additional day added to their
leave, not being a day added to or as annual leave (or additional annual leave) and not being a
day that attracts annual leave loading or shift and weekend penalties when taken as leave.”51
[189] The PHIEA accepted that many nurses and midwives prefer the option to have time
off as compensation for working on a public holiday and it is appropriate that greater
flexibility is introduced into the Nurses Award. However in doing so, it submitted that the
needs of the healthcare business must also be considered. In that light, it also raised the
alternative that the option of equivalent time off should be by mutual agreement in writing
between the employer and employee at the time the public holiday is worked.
[190] To the extent that the claim relies upon enterprise bargaining outcomes, the Full Bench
in the Penalty Rates Full Bench decision52 explained why care should be taken in considering
such matters in the context of the award safety net.
[191] We note that the concept of introducing some additional flexibility in the method of
compensation for public holidays appears to have a level of support from some of the major
employer organisations. Consistent with our view in relation to related issues under the Fast
Food and Hair and Beauty awards, we consider that there is merit in adding flexibility in this
regard.
[192] We also accept that a unilateral right to additional leave or time off could have
negative consequences for the employers given the level of leave already provided in this
award and the circumstances of the nursing profession.
[193] A variation will be made to the Nurses Award to permit the option of equivalent time
off or a day added to annual leave by mutual agreement between the employer and employee
at the time the public holiday is worked. We will refer this matter to Deputy President Smith
to convene discussions with the relevant parties and to make the final determination.
(vii) SEVEN-DAY SHIFTWORKERS - Social, Community, Home Care and Disability
Services Industry Award 2010
[194] The ASU claim seeks the insertion of the following new subclause 34.3 into this
award:
34.3 Seven-day shifts
(a) A full-time 7 day week employee, who does not work on any public holiday
because it is a rostered day off, will receive an extra 7 hours 36 minutes pay in respect
of such day.
(b) A part-time 7 day week employee, who does not work on any public holiday
because it is a rostered day off, will receive an extra days pay in respect of such day
provided that such payment does not exceed 7 hours 36 minutes pay.
[195] This is directly related to the ACTU RDO model test case proposal, albeit that unlike
other individual union applications, it is directed to a specific group of employees. The ASU
contended that the SACS award was not meeting the modern awards objective without this
[2013] FWCFB 2168
38
provision and that the critical mass of awards applying in the industry prior to the award
modernisation process contained similar entitlements.
[196] Given our views about the ACTU claim, we are not inclined to grant this application.
However, there are no submissions from the employers dealing directly with this aspect of the
matter in this award.
[197] In these circumstances, we will remit the matter to Vice President Watson, who is
dealing with applications concerning this award more generally, for determination in light of
our decision.
5. CONCLUSIONS
[198] For reasons outlined above, we have concluded that only a limited number of the
proposed variations should be made as part of the Transitional Review.
[199] Those matters will be referred to individual Members of the Commission as indicated
to determine in accordance with this decision, with recourse to this Full Bench if necessary.
[200] The Part-day public holiday matter will be subject to further proceedings later this
year.
[201] We note that the issues considered in this decision have been determined within the
specific context of the Transitional Review. In addition, some of the matters were not subject
to major focus from the parties given the concentration on the central claims relating to
certain penalty rates in the related applications.
[202] To the extent that these and other issues may be subject to further consideration as part
of any subsequent review, those parties seeking to advance propositions should ensure that
they are in a position to provide relevant supporting materials and evidence.
PRESIDENT
Appearances:
T. Babu for the Accommodation Association of Australia.
G. Liggins for the Aged and Community Services Association.
H. Lepahe for Australian Business Industrial.
D. Mammone for the Australian Chamber of Commerce and Industry
L. Weber and E. McCoy for the Australian Council of Trade Unions.
[2013] FWCFB 2168
39
J. Wimalaratna for the Australian Federation of Employers and Industries.
T. Evans and O. Webb for the Australian Hotels Association.
P. Cully for the Australian Government.
M. Mead for the Australian Industry Group.
A. McCarthy for the Australian Nursing Federation.
N. Tindley for the Australian Retailers Association.
T. McKernan Australian Workers’ Union of Employees, Queensland.
K. Van Gough and H. Wallgren for Business South Australia.
A. Grayson for the Maritime Union of Australia.
T. Earls for the Master Builders Association of South Australia.
D. Sztrajt for the Master Grocers Association.
S. Elliffe for the National Retailers Association.
M. Donovan for the Shop, Distributive and Allied Employees’ Association.
S. Hills for the South Australian Wine Industry Association.
A. Dansea for the State and Northern Territory Local Government Association.
C. Young for the United Services Union.
J. Nolan and N. Swancott for United Voice.
E. Watt for the Victorian Association for Newsagents.
Hearing details:
Before Commissioner Gooley:
2012.
Melbourne, Sydney, Brisbane and Adelaide (video hearing):
October 18.
Before Commissioner Hampton:
2012.
Melbourne (with video links at various times to Sydney, Brisbane, Adelaide, Canberra, Perth,
Newcastle, Orange, Coffs Harbour and Griffith):
October 18;
November 1, 2, 20, 21, 22 and 30.
[2013] FWCFB 2168
40
Before Commissioner Jones:
2012
Melbourne
18 October; and
13, 15, 22 and 30 November 2012.
2012
Brisbane, Melbourne and Sydney (video hearing):
8 and 20 November.
2012
Sydney
12 November.
Before the Full Bench:
2012.
Melbourne, Sydney and Adelaide (video hearing):
18 and 19 December.
Printed by authority of the Commonwealth Government Printer
Price code G, PR535543
1 Fair Work Australia became the Fair Work Commission on 1 January 2013.
2 The Review does not include modern enterprise awards or State Reference Public Sector Awards.
3 [2012] FWAFB 5600.
4 [2013] FWCFB 1635.
5 APESMA, AEU, AMWU, AMWU (vehicles division), ASU, AWU, CEPU, CFMEU, SDA, United Voice, ANF, and
CPSU.
6 A list of modern awards proposed for variation was supplied by the ACTU on 20 August 2012 and included some 101
awards. The list of awards was modified by the ACTU as part of the final written submissions (14 December 2012) to further
reduce the number of relevant awards and to clarify that certain parts of the model provisions were intended to apply only to
nominated awards. These documents are available on the FWC website.
7 We note that certain modern awards were not part of the ACTU’s claim: Hospitality, Retail, Food Manufacturing and Hair
and Beauty.
8 The AHA also contended that the word “day” in clauses 20.2(c) and 27.5 of the Hospitality Award would also need to be
varied to “time worked” for consistency.
9 [2013] FWCFB 1635 at paras 240 to 242.
10 The MGA proposes that the penalty may be paid in relation to either the original or the additional public holiday, but not
both.
11 The ACT-CCI proposes that the penalty may be paid in relation to either the original or the additional public holiday, but
not both. It further proposes that an alternative substitute day may be agreed between the employer and the majority of
employees in the relevant enterprise or section.
12 The General Retail Award presently states the penalty as an additional loading; i.e. 150%. The SDA application also seeks
to provide some limitations as to when time off in lieu is to be provided.
13 This is consistent with the original ACTU claim on this element.
[2013] FWCFB 2168
41
14 This is consistent with the original ACTU claim on this element.
15 In addition to the claims related to the relevant ACTU model clauses as adapted to this award, the USU sought to introduce
a new public holidays provision based upon the Local Government (State) Award 2010 of the Industrial Relations
Commission of NSW. This is part of a broader application to adopt that award and this aspect should be dealt with in that
context having regard to this decision.
16 Print L4534; Print L7799; Print L7971; and Print L9178.
17 This is a reference to the June 2012 Full Bench decision.
18 The original award modernisation request under s.576C(1) of the Workplace Relations Act 1996 was made on 28 March
2008 and was varied on a number of occasions. A consolidated version of the request is available on the FWC website.
19 ACCI written submissions dated 17 September 2012.
20 See [2013] FWCFB 1635 at paras 4 - 18.
21 [2008] AIRCFB 100 at para 105.
22 [2009] AIRCFB 345 at para 48.
23 As amended by the ACTU in reply submissions dated 14 December 2012.
24 ACTU written submission dated 13 August 2012.
25 Print L4534.
26 Ibid.
27 [2013] FWCFB 1635 at paras 29 - 50.
28 The ACTU clarified in final written submissions (14 December 2012) that this element of the model provisions was
restricted to those modern awards containing an express RDO accrual system.
29 The ACTU confirmed in final written submissions that this model was not being sought in relation to certain modern
awards where the “test case standard” already applied or where the existing term was more beneficial.
30 Print L4534, p19 - 20.
31 PHIEA written submission dated September 2012.
32 [2010] FWAFB 9290.
33 Ibid.
34 There are other editorial changes proposed by the AHA and these should be considered as part of any final determination.
35 ARA application AM2012/245.
36 Print L4534 at 19 -20.
37 s.139(1)(e) of the FW Act.
38 [2008] AIRCFB 1000.
39 This is based upon the SDA application to vary the General Retail Award. A similar proposal was advanced in relation to
the Hair and Beauty Award.
40 Victorian Shops Award and other instruments.
41 SDA written submissions dated 13 August 2012.
42 General Retail Award - clause 12.2; Hair and Beauty Award - clause 12.5.
43 General Retail Award - clause 13.4 (noting that the secondary students provision would not operate on a public holiday);
Hair and Beauty Award - clause 13.6.
44 [2012] FWAFB 10738.
45 [2012] FWA 10496 and [2012] FWA 10621.
46 SDA written submissions dated 13 August 2012.
47 The level and manner of specifying the payment have been dealt with earlier in this decision.
48 SDA written submissions dated 13 August 2012.
49 National Retail Association and Others [2010] FWAFB 305.
50 Ibid at para 20.
51 Aged Care Employers submission dated 17 September 2012.
52 [2013] FWCFB 1635 at para 229.
