1
Fair Work Transitional Provisions and Consequential Amendments) Act 2009
Item 6, Sch. 5 - Modern awards review
Modern Awards Review 2012
(AM2012/355)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT SMITH
COMMISSIONER HAMPTON
MELBOURNE, 13 NOVEMBER 2013
Review of modern awards - Part day public holidays - ambiguity and uncertainty - s.160 Fair
Work Act
[1] This matter arises in the context of the 2012 Modern Awards Transitional Review that
the Commission is conducting pursuant to item 6 of Part 2 of Schedule 5 of the Fair Work
(Transitional Provisions and Consequential Amendments) Act 2009.
[2] This decision deals with one aspect of the public holiday matters, which have been
referred to this Full Bench, namely matters arising from part-day public holidays which had
been proclaimed for Christmas Eve and New Year’s Eve.
[3] On 21 December 2012, we dealt1 with the resolution of ambiguities and uncertainties
which arose from the proclamation of part-day public holidays in South Australia for
Christmas Eve and New Year’s Eve in December 2012. The Commission issued a range of
determinations affecting 113 modern awards to resolve these ambiguities and uncertainties.
Five separate draft determinations were published on the Commission’s website on
20 December 2012 and parties were given an opportunity to comment. Five final
determinations were issued by the Commission on 21 December 2012.2 The final
determinations added an interim schedule to 113 modern awards titled ‘2012 Part-day public
holidays’.
[4] Correspondence was received by the Commission on 21 August 2013 from United
Voice,3 outlining that certain parties had held discussions regarding the need for a further
interim schedule in the affected modern awards to take into account the part-day public
holidays in South Australia in December 2013. In general terms, the proposal made by these
parties involved extending the operation of the 2012 Part-day public holidays schedules to
include those part-day public holidays this year. Further, the issue would be substantively
considered as part of the 2014 Modern Awards Review to be conducted by the Commission.
[5] On 12 September 2013, we issued a Statement4 establishing a process to deal with the
proposal. This involved the convening of a conference, which took place before
Commissioner Hampton on 26 September 2013.
[2013] FWCFB 8938
DECISION
E AUSTRALIA FairWork Commission
[2013] FWCFB 8938
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[6] All of the parties appearing at the conference supported the continuation of the interim
arrangements to cover the Christmas and New Year part-day public holidays that will take
place in South Australia later this year. However, Australian Business Industrial (ABI) with
the support of the Master Builders Association (MBA) and Restaurant and Catering Australia5
(RCA) raised some concerns about the operation of one element of the “model” provision that
is found in many of the modern awards that were varied late last year.
[7] The relevant provision is in a particular subclause6 that appears in all but two of the
schedules now appearing in the 113 modern awards that were varied. Those concerns had
earlier been outlined in correspondence from ABI dated 6 September 2013.
[8] Although there are, in effect, three versions of the schedules with the subclause in
question, the following schedule illustrates the context for the provision:
“Schedule X—2012 Part-day public holidays
This schedule operates where this award otherwise contains provisions dealing with
public holidays that supplement the NES.
X.1 Where a part-day public holiday is declared or prescribed between 7.00pm and
midnight on Christmas Eve (24 December 2012) or New Year’s Eve (31
December 2012) the following will apply on Christmas Eve and New Year’s
Eve and will override any provision in this award relating to public holidays to
the extent of the inconsistency:
(a) All employees will have the right to refuse to work on the part-day
public holiday if the request to work is not reasonable or the refusal is
reasonable as provided for in the NES.
(b) Where a part-time or full-time employee is usually rostered to work
ordinary hours between 7.00pm and midnight but as a result of
exercising their right under the NES does not work, they will be paid
their ordinary rate of pay for such hours not worked.
(c) Where a part-time or full-time employee is usually rostered to work
ordinary hours between 7.00pm and midnight but as a result of being
on annual leave does not work, they will be taken not to be on annual
leave between those hours of 7.00pm and midnight that they would
have usually been rostered to work and will be paid their ordinary rate
of pay for such hours.
(d) Where a part-time or full-time employee is usually rostered to work
ordinary hours between 7.00pm and midnight, but as a result of having
a rostered day off (RDO) provided under this award, does not work, the
employee will be taken to be on a public holiday for such hours and
paid their ordinary rate of pay for those hours.
(e) Excluding annualised salaried employees to whom clause X.1(f)
applies, where an employee works any hours between 7.00pm and
[2013] FWCFB 8938
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midnight they will be entitled to the appropriate public holiday penalty
rate (if any) in this award for those hours worked.
(f) Where an employee is paid an annualised salary under the provisions of
this award and is entitled under this award to time off in lieu or
additional annual leave for work on a public holiday, they will be
entitled to time off in lieu or pro-rata annual leave equivalent to the
time worked between 7.00pm and midnight.
(g) An employee not rostered to work between 7.00pm and midnight, other
than an employee who has exercised their right in accordance with
clause X.1(a), will not be entitled to another day off, another day’s pay
or another day of annual leave as a result of the part-day public holiday.
This schedule is an interim provision and subject to further review.”7
[9] The concerns are said to arise from the underlined text in subclause (g).
[10] Clause X.1(a) is a reference to the provision that recognises the right of an employee,
in certain circumstances, to be absent on a public holiday as provided by s.114 of Fair Work
Act 2009 (the Act).
[11] ABI suggests on one reading of the present provision, the underlined text means that
employees who exercised their right under subclause (a) receive an additional benefit that was
not intended. That is, the clause could be read as meaning that the employee reasonably
refusing to work would receive pay for the public holiday hours not worked in circumstances
where the employee would not have otherwise worked. Not only would that be double
dipping, but would arbitrarily distinguish between those who chose not to work and those
who were sent home before completing their rostered hours because the employer closed at
the start of the public holiday. ABI contends that this is not what is intended by this exclusion,
and that such an approach would not be reasonable.8
[12] ABI has indicated that it is for the Commission to determine whether the subclause is
ambiguous in the manner identified and, if so, whether the ambiguity is sufficient to warrant
variation. Alternatively, ABI has suggested that the Full Bench might consider clarifying the
operation of the relevant subclause in its decision when dealing with this matter.
[13] The RCA contends that the relevant subclause can be interpreted to give employees,
including a casual exercising their right of refusal to work on a public holiday under the Act,
additional full day entitlements creating an incentive to exercise the right and not to work. It
was further contended that the original intent of the schedules was to ensure that the
introduction of part-day public holidays in South Australia did not provide full day benefits
under the various public holiday clauses contained in modern awards.
[14] The RCA argues that this “loophole” must be corrected and proposes the following
alternative provision:
“(g) An employee not rostered to work between 7.00pm and midnight will not be
entitled to another day off, another day’s pay or another day of annual leave as a result
of the part-day public holiday. Except where a part-time or full-time employee is not
[2013] FWCFB 8938
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rostered because they have exercised their right not to work under X.1 (a) then such
part-time or full-time employee will be paid their ordinary rate of pay for such hours
not worked for the part-day public holiday.”
[15] The Australian Industry Group (AiG) has proposed a further alternative9 as follows:
“(g) An employee not rostered to work whose ordinary hours of work do not fall
between 7.00 pm and midnight, other than an employee who has exercised their right
in accordance with clause X.1(a), will not be entitled to another day off, another day’s
pay or another day of annual leave as a result of the part-day public holiday.”
[16] We note that during the course of the hearing of this matter on 7 November 2013, a
number of employer organisations expressed their support for the AiG proposal and this then
became the preferred variation proposed by those employer organisations agitating for a
variation.
[17] SA Unions, with the support of United Voice, the Shop, Distributive and Allied
Employees Association (SDA), Construction, Forestry, Mining and Energy Union (CFMEU),
and the Maritime Union of Australia (MUA) contend that in the absence of cogent evidence
that the awards are not operating effectively or have created actual adverse consequences, the
awards concerned should not be varied other than to cover the 2013 Christmas and New Year
part-day public holidays.
[18] Business SA submitted that the interim schedules have operated as intended by
providing necessary clarity for those businesses operating on any of the two part-day public
holidays. Accordingly, it supports the retention of the schedules for the 2013 Christmas and
New Year period.
[19] The Australian Shipowners Association and the Motor Trades Association of SA have
also proposed that the relevant interim arrangements be extended to cover 2013 without
further variation.
[20] The Construction, Forestry, Mining and Energy Union, Forestry and Furnishing
Products Division has indicated that the alleged concerns raised by ABI do not apply to the
Timber Industry Award 2010 and the interim arrangements for that award should be continued
for the upcoming part-day public holidays without amendment.
[21] In a report dated 25 October 2013, Commissioner Hampton set out a recommended
approach for dealing with the issue raised by ABI and others:
“[39] Given the present circumstances, it would be prudent to deal separately with those
modern awards where the issues do not arise. That is, where the subclause in question
is not part of the relevant schedules, those modern awards could be varied immediately
to confirm the continuation of the interim arrangements for the upcoming Christmas
and New Year period.
[40]A draft determination giving effect to that approach is attached to this Report.
[41] In terms of the remaining modern awards, the Full Bench will need to consider
whether there is sufficient uncertainty associated with the provision, and if so, whether
[2013] FWCFB 8938
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it should be dealt with as part of this present exercise. This could involve
consideration as to whether the existing provisions are likely to operate in the manner
speculated by some parties and whether any proposed amendments raise further
uncertainties.
[42] The Full Bench could then issue determinations covering all of the remaining
modern awards containing the part-day public holiday schedule in question, in the
same terms as the draft attached to this Report, with additional variations, if required.
[43] Although the issues could be dealt with by the Full Bench on the papers, it would
appear to be more efficient for the Full Bench to convene a single short hearing to give
all interested parties an opportunity to be heard.
[44] If this course of action is adopted, the Full Bench should convene in early to mid
November 2013 to permit the matters to be determined well in advance of the
upcoming Christmas and New Year period.”10
[22] At the hearing on 7 November 2013 there was general support for the draft
determination proposed by Commissioner Hampton in relation to the Fast Food Industry
Award 2010 and the Timber Industry Award 2010. No party opposed the making of the
determination in the manner proposed and accordingly we have made the determination in
those terms.11
[23] We now turn to deal with the remaining 111 modern awards which contain a schedule
dealing with part-day public holidays.
[24] The essential issue is whether the existing provision has left an ambiguity or
uncertainty that should be addressed at this point. This requires an appreciation of the
background and intended operation of the schedule. Much of the background is set out in the
decision12 leading to the making of the determinations in 2012 and what follows should be
read in that context.
[25] The exception that appears in the subclause in question arises from the operation of the
National Employment Standards (NES). In particular, s.116 of the Act which provides as
follows:
“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.”
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[26] Further, the operation of the right to be absent from work on a public holiday as
provided by s.114 of the Act is directly relevant. The provision is in the following terms:
“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;
(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.”
[2013] FWCFB 8938
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[27] The relationship between the modern awards and the NES is established by s.55 and
s.56 of the Act in the following terms:
“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.
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
[2013] FWCFB 8938
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(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).
[2013] FWCFB 8938
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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
A term of a modern award or enterprise agreement has no effect to the extent that it
contravenes section 55.”
[28] 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.
[29] Further, the terms of a modern award must not contravene the terms of the NES and
any such provision is of no effect.
[30] The operation of the NES and the modern award provisions more generally, in the
context of a part-day public holiday occurring at the end of what would be for many a normal
work day, creates particular circumstances that have led to the schedules and subclause in
question.
[31] The provisions of subclause X.1(a) of the schedules recognise the import of s.114 of
the Act and subclause X.1(b) reflect the import of s.116. Subclause X.1(g) must be read
within that context. The schedule as a whole is intended to address the fact that where an
employee reasonably refuses to work those of his or her rostered hours which fall into the
part-day public holiday hours in accordance with s.114, the employee is entitled to receive
their ordinary rate of pay for such hours not worked, in accordance with s.116 of the Act.
[32] Accordingly, the exclusion in subclause X.1(g). is intended to clarify that the
provision is not to be read as depriving the employee of the pay for those rostered hours
falling within the part-day public holiday which were not worked in those particular
circumstances.
[33] The subclause was not intended to detract from or supplement the NES, but rather to
operate consistently with the standards in the context of these part-day public holidays.
[34] We note that although the RCA did advise that some issues were raised by some of its
members, there is no evidence that the present provisions have caused actual difficulties in
their application. We are also not aware of any disputes concerning these matters being
notified to the Commission. In these circumstances, we would not normally be inclined to
consider any variation. However, in our original decision concerning these matters we did
find that ambiguities or uncertainties arose from the concept of the part-day public holidays in
the relevant modern awards.13 We also expressly provided for the variations to operate on an
interim basis.
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[35] On balance, we are satisfied that there is some remaining uncertainty about the
operation of the schedules in the relevant modern awards.
[36] We add that during the course of the hearing of this matter, there was some discussion
of the operation of the NES in the context of casual employees. It is not necessary or
appropriate to deal with these issues given the limited nature of these proceedings and the
above observations.
Conclusions
[37] In light of the above, there is no basis to make any significant change to the subclause,
or the schedules, in question. We do however accept that some qualification to confirm the
relationship between the modern award provisions concerned and the NES would assist to
remove any remaining uncertainty on the immediate issue.
[38] Accordingly, we will make a determination varying each relevant schedule to add the
following term:
“This schedule is not intended to detract from or supplement the NES.”
[39] We note that the term “NES” is defined in each of the relevant modern awards.
[40] The determination will also confirm the extension of the schedules to deal with the
relevant 2013 part-day public holidays as supported by all parties.
[41] A determination14 varying the relevant awards is being made in conjunction with this
decision. The determination establishes that the variation will come into effect on Thursday
21 November 2013. We note that the effect of the Act is that the determination will take effect
in relation to employees at the start of each employee’s first full pay period that commences
on or after that date.15
PRESIDENT
Appearances:
M. Adler for the Housing Industry Association.
D. Blairs for the Shop, Distributive and Allied Employees Association.
A. Borg for the Construction, Forestry, Mining and Energy Union.
T. E. Evans for the Australian Hotels Association.
L. Harrison for United Voice.
H. Lepahe for Australian Business Industrial.
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A. Parkes for Restaurant and Catering Australia.
D. Putland for the Master Builders Association of South Australia, Master Builders
Association of Australia and its various State-based registered organisations.
R. Read for the Construction, Forestry, Mining and Energy Union, Forestry and Furnishing
Products Division.
E. Schuidder for the SA Wine Industry Association.
M. Sheehan for the Motor Trade Association of South Australia.
S. Smith for the Australian Industry Group.
A. Story for SA Unions and the Maritime Union of Australia.
H. Wallgren for Business SA.
Hearing details:
Adelaide, Brisbane, Melbourne and Sydney (video hearing)
7 November 2013.
Printed by authority of the Commonwealth Government Printer
Price code C, PR544517
1 [2012] FWAFB 10738.
2 PR532628, PR532630, PR532631, PR532632 and PR532633.
3 United Voice wrote to the Commission on behalf of a number of parties including the Shop, Distributive and Allied
Employees Association (SDA) and SA Unions. United Voice advised that the SDA had also had discussions with Business
SA. This piece of correspondence is published on the Commission’s website:
http://www.fwc.gov.au/documents/awardmod/review/AM2012355_corr_UV_220813.pdf.
4 [2013] FWCFB 6916.
5 The RCA initially also raised other issues however these go to the substance of the part-day public holidays rather than the
interim provisions.
6 Subclause (g) in those modern awards varied by Determinations PR532630 and PR532631 and subclause (f) in those
modern awards varied by Determination PR532628.
7 Determination PR532630 issued 21 December 2012.
8 ABI written submission, 4 October 2013.
9 AiG originally raised this formulation during the proceedings conducted in December 2012.
10 PR543815
11 PR544262.
12 [2012] FWAFB 10738.
13 Ibid at par [12].
14 PR544519.
15 S.165 of the Act.
http://www.fwc.gov.au/documents/awardmod/review/AM2012355_corr_UV_220813.pdf
