1
Fair Work Act 2009
S.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct
error.
Part-day Public Holiday provisions in modern awards
(AM2012/355)
COMMISSIONER HAMPTON ADELAIDE, 29 SEPTEMBER 2014
Application to vary modern awards in relation to part-day public holiday provisions.
[1] The background to this matter is set out in the Decision1 issued by the Full Bench on
13 November 2013 regarding part-day public holiday provisions in various Modern Awards.
[2] In brief, most of the Commission’s modern awards were varied to include an
additional schedule dealing with part-day public holidays, originally in 2012, and again in
2013 with some minor additions.2 There are a number of different versions of the schedule
but each is directed at confirming appropriate arrangements for certain part-day public
holidays. On each occasion, the various schedules were specified to operate on an interim
basis for the relevant year.
[3] On 21 August 2014, Business SA wrote3 to the Commission in the context of
discussions that had taken place between them and the Shop, Distributive and Allied
Employees Association and United Voice regarding the continued operation of the schedules.
In particular, Business SA confirmed the need to vary the schedules to deal with the part-day
public holidays that would take place in South Australia later in 2014.
[4] I convened a conference of interested parties on 17 September 2014 and have now
heard the positions of many of the organisations that have participated in previous
proceedings concerning these provisions in recent years.
[5] All of the parties appearing at the conference, or providing written submissions,
supported the continuation of the present arrangements to cover the Christmas and New Year
part-day public holidays that will take place in South Australia later this year. However,
during the course of the conference, two alternate positions were expressed concerning how
that objective should be met.
[6] Business SA proposed that the provisions should operate on an ongoing basis, in order
to alleviate the need for the various schedules to be varied each year. It contended that the
schedules had operated without any apparent concerns and could now safely operate without
the need for yearly review. This submission was supported by SA Unions, the Shop,
Distributive and Allied Employees Association, United Voice, and the Construction, Forestry,
[2014] FWC 6717
STATEMENT
E AUSTRALIA FairWork Commission
[2014] FWC 6717
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Mining and Energy Union. The Australian Industry Group subsequently provided
correspondence4 supporting the position of Business SA.
[7] The Australian Hotels Association, whilst supporting the making of appropriate
determinations to cover the 2014 public holidays, raised concerns about the provisions being
made “permanent”, given the upcoming review of the public holiday provisions in modern
awards more generally. That review is taking place as part of the 4 yearly review of Modern
Awards and proceedings before the Full Bench are currently scheduled on that aspect in the
first part of 2015.5 This view was supported by Restaurant and Catering Industrial,
Accommodation Association of Australia, Motor Inn, Motel and Accommodation Association
and the South Australian Wine Industry Association. Each of these organisations advised that
they anticipated making submissions as part of the 4 yearly review seeking significant
variations to public holiday provisions more generally.
[8] The Master Builders Association supported the Business SA proposal but reserved the
right to make further submissions. The Construction, Forestry, Mining and Energy Union,
Forestry, Furnishing, Building Products and Manufacturing Division contended that those
awards in which it had an interest should be varied simply to include the 2014 part-day public
holidays.
[9] Following the conference, Mr Cairney on behalf of Business SA confirmed6 that the
proposal to make the part-day public holiday schedules ongoing was not intended to impact
upon any parties’ ability to argue their case concerning public holiday provisions more
generally before the Full Bench next year. Rather, it was intended to ensure the continuation
of the safety net position should a decision not be made by a Full Bench prior to December
2015.
[10] It is apparent that the various modern award schedules should be amended to continue
their operation for the 2014 part-day public holidays. This could be achieved in one of two
ways.
[11] Firstly, by simply amending the references to 2013 in each of the part-day public
holiday schedules to cite 2014 in lieu thereof. This would comprehend the 2014 holidays,
however it would require the Full Bench to fully conclude the public holiday aspect of the
4 yearly review and to vary the relevant modern awards, or make further interim provisions,
by no later than December 2015.
[12] Alternatively, each of the part-day public holiday schedules could be amended so that
they were to apply to part-day public holidays occurring on Christmas Eve and New Year’s
Eve generally. Given the 4 yearly modern award review process, any such variations could be
made by the Full Bench on the express basis that the variations would not prevent the further
consideration of the provisions as part of that review. Further, any party would be at liberty to
make an application, on an appropriate basis, to further vary one or more of the schedules to
remove an ambiguity or uncertainty.7
[2014] FWC 6717
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[13] I recommend that the Full Commission consider the above options and determine an
appropriate variation(s) to the relevant modern award schedules well ahead of part-day public
holidays that will take place later this year in South Australia.
Printed by authority of the Commonwealth Government Printer
Price code A, PR555853
1 [2013] FWCFB 8939.
2 See for example PR544519.
3 Letter from Business SA, 21 August 2014.
4 Email from Ms Bhatt, 23 August 2014.
5 See Statement of the Full Bench issued 13 August 2014 - [2014] FWCFB 5537.
6 Letter from Business SA, 18 September 2014.
7 S.160 of the Act.
