| [2014] FWCFB 7830 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.160 —Application to vary a modern award to remove ambiguity or uncertainty or correct error
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 12 NOVEMBER 2014 |
Application to vary modern awards in relation to part-day public holiday provisions - removal of ambiguities and uncertainties - s.160 Fair Work Act 2009 (Cth)
[1] This decision deals with the provisions of various modern awards as they will apply to the part-day public holidays which have been proclaimed for Christmas Eve and New Year’s Eve, in South Australia.
[2] The background to this matter is set out in the Decisions issued by us on 21 December 2012 1 and 13 November 20132 and in the Statement issued on 30 September 2014.3
[3] 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. 4 There are a number of different versions of the schedule but each is directed at providing appropriate award provisions in circumstances where part day public holidays are proclaimed for Christmas Eve and New Year’s Eve. On each occasion when the modern awards were varied, the various schedules were specified to operate on an interim basis for the relevant year. The interim nature of the variations means that, absent a further variation, these provisions will not apply to any proclaimed part day public holiday in 2014. Following a conference of interested parties convened by Commissioner Hampton on 17 September 2014, a consent position was reached to continue the present arrangements to cover the part-day public holidays that will take place in 2014. There were, however, differing views about the manner in which to give effect to the continuation of the present arrangements. Two options were canvassed in Commissioner Hampton’s Statement5 issued following the conference.
[4] The first option is for this Full Bench to delete the references to 2013 in each of the part-day public holiday schedules in the relevant modern awards and insert a reference to 2014 instead. Any ‘ongoing’ variations could then be considered as part of the Four Yearly Review of Modern Awards being conducted by the Commission 6 under s.156 of the Fair Work Act 2009 (the FW Act) (the 4 yearly review). Parties would also be at liberty to make an application to further vary one or more of the schedules.
[5] The second option is to immediately amend each of the part-day public holiday schedules to apply to part-day public holidays occurring on Christmas Eve and New Year’s Eve on an ongoing basis. This would, in effect, require the removal of reference to the schedules being interim in nature and a variation to confirm that each would operate in relation to all such part-day public holidays. Those parties supporting this option also contend that the ongoing variation should not prevent the provisions being further considered as part of the 4 yearly review.
[6] Interested parties were invited to make submissions in respect of the two options canvassed in Commissioner Hampton’s Statement. The submissions filed are available on the Commission’s website and we have had regard to each of the submissions.
[7] It is evident that all parties making submissions support the continuation of the relevant provisions for 2014 and most recognise that the 4 yearly review could be used to consider any further changes. There remains a difference of view as to whether further interim provisions, as opposed to the immediate ‘ongoing’ option, should be adopted at this point.
[8] Some parties advanced alternatives for addressing the issue in contention. Business SA suggested 7 varying each of the relevant modern awards on an ongoing basis except where a party raises a specific problem with the existing schedule. The Australian Industry Group proposed8 that the Commission issue draft determinations and provide parties with an opportunity to then make additional submissions regarding the form of the orders.
[9] We consider that it is important to provide some certainty for the 2014 part-day public holidays at an early opportunity. We do not favour providing an additional process to resolve the issue between the parties as this would inevitably lead to further delay in the finalisation of this matter.
[10] The significant point of difference between the parties is how the varied schedules would relate to the 4 yearly review. We note that the public holiday provisions in modern awards are to be specifically considered during the course of 2015. We also note that the President is to shortly convene a directions conference 9 to finalise the necessary arrangements for that part of the 4 yearly review.
[11] We have decided to make a determination varying each of the part-day public holiday schedules in the relevant modern awards to amend the references to 2013 and insert 2014 instead. This will ultimately provide the appropriate ongoing provisions sought by almost all parties, permit the 4 yearly review to deal comprehensively with all of the public holiday issues, and allow a determination to be issued now to confirm the arrangements for December 2014.
[12] We are confident that the public holiday aspect of the 4 yearly review will be completed well ahead of the Christmas/New Year period in 2015. This will enable the Commission to fully review and consider the part-day public holiday provisions in the context of the public holiday clauses, and other modern award provisions, more generally. The Commission would be in a position to confirm the part-day public holiday schedules or make any necessary amendments as part of the outcome of the 4 yearly review in a timely way.
[13] For the reasons given in our decision of 21 December 2012 10 we are satisfied that the proclamation of part day public holidays for Christmas Eve and New Year’s Eve has given rise to a number of ambiguities and uncertainties in the provisions of the modern awards we propose to vary. The variation determinations we propose to make will remove those ambiguities and uncertainties. Section 160 of the FW Act provides that the Commission may act on its own initiative to make such determinations.
[14] A determination 11 varying the relevant awards is being made in conjunction with this decision. The determination establishes that the variation will come into effect on 12 November 2014. 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.12
PRESIDENT
6 See Statement of the Full Bench issued 13 August 2014 - [2014] FWCFB 5537.
7 Written submissions, 21 October 2014.
8 Written submissions, 15 October 2014.
9 Scheduled for 17 November 2014.
12 s.165 of the Act.
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