STATEMENT

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

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

4 yearly review of modern awards – public holidays.

[1] A Statement issued on 17 March 2014 outlined that Public Holidays would be listed as a common issue to be dealt with as part of the 4 yearly review of modern awards (the Review). Conferences have been held on 17 November 2014, 12 December 2014 and 20 February 2015 to determine the scope of the Public Holidays common issue and to discuss timetabling arrangements. A further conference was held on 13 March 2015 to discuss the matters raised in the Statement issued on 3 March 2015 1. This Statement confirms the scheduling of the proceedings in relation to these issues.

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

Part-day public holidays

[3] A decision dealing with part-day public holidays was issued on 12 November 2014. 2 The decision deals with provisions of various modern awards as they apply to part-day public holidays which have been proclaimed for Christmas Eve and New Year’s Eve in South Australia. This issue has been the subject of various interim decisions since 20123 in which multiple modern awards were varied to include an additional schedule dealing with part-day public holidays. There are a number of different versions of this schedule. In the decision of 12 November 2014, it was noted that the issue would be dealt with comprehensively in the Review as this would enable the Commission to fully review and consider part-day public holiday provisions in the context of the public holiday clauses, and other modern award provisions, more generally.

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

[5] Commissioner Hampton will convene a conference of interested parties to discuss the arrangements for part-day public holidays that will occur in December 2015. This issue will be addressed as soon as practicable so all parties involved have certainty about the applicable arrangements well before the end of 2015. The Commissioner will report back after the conference and, if required, the matter may be listed for further hearing. If consensus can be reached, this issue may be dealt with on the papers.

[6] The Australian Hotels Association (AHA) are proposing 4 to have some paragraphs from Schedule H—Part-day Public Holidays of the Hospitality Industry (General) Award 2010 (the Hospitality Award) inserted into the modern award. This proposal is to be discussed at the conference convened by Commissioner Hampton, including how it is proposed that this matter be heard and determined.

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

Employer claims

[8] The AHA, the Accommodation Association of Australia (AAA) and the Motor Inn, Motel and Accommodation Association (MIMA) are proposing a penalty rate for the eight public holidays listed at s.115(1) of the Fair Work Act 2009 (the Act) and a different, lower, penalty rate for any additional days, or part-days, declared or prescribed under a law of a State or Territory to be public holidays. These claims will be determined in the Penalty Rates matter (AM2014/305).

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

Union claims

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

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

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

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

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

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

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

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

[12] The weekend public holiday claims by a number of unions deal with payment when an employee works on a public holiday that has been substituted with another day, for example when Christmas Day falls on a weekend and the employee works on 25 December. These claims will be dealt with as part of the Public Holidays common issue.

[13] The Commission will convene a conference of union parties with a view to clarifying these claims. It was noted at the conference that it would be of assistance to the Commission, and all interested parties, if the union parties worked towards a common position. Further conferences will be convened over the next six months to assess the extent of any agreement between the union and employer parties in relation to the various claims to be dealt with as part of the Public Holidays common issue.

Scheduling

[14] In correspondence dated 25 February 2015, Australian Business Industrial (ABI) and the NSW Business Chamber (NSWBC) submitted that the SDA’s claim is likely to have a bearing upon the proceedings with respect to penalty rates for public holidays in the retail and hair and beauty industries. At the conference there was general agreement with the timing proposed by ABI and accordingly the union claims will be heard and determined after the Penalty rates common issue.

[15] It is confirmed that the Penalty rates common issue will deal with the quantum of the penalty rate payable on a public holiday while other issues in relation to public holiday entitlements and obligations will be dealt with during the Public holidays common issue proceedings. For clarity, Attachment A to this Statement contains a list of the claims in relation to penalty rates payable on public holidays which will be dealt with by as part of the Penalty rates matter.

[16] In order to ensure the resources of the parties are available to effectively participate in both the common issues and award stages, the non-penalty rate claims in relation to public holidays will be dealt with in the first half of 2016. The Commission will also be mindful of the interests of the parties when scheduling the Group 4 award stage matters.

PRESIDENT

ATTACHMENT A

1. Penalty rates

The following claims will be dealt with as part of the Penalty rates matter in AM2014/305

2. Public holidays

The following claims will be dealt with as part of the Public holidays matter:

2.1 All other claims lodged in AM2014/301 including those listed below; and

2.2 Claims in relation to payment when working on a substituted public holiday that falls on a weekend:

3. The Restaurant & Catering Industrial claim relating to the part-day penalty rate in the Restaurant Industry Award 2010 only will be dealt with in the award stage of the review.

 1   [2015] FWC 1484

 2   [2014] FWCFB 7830.

 3   [2012] FWAFB 10738; [2013] FWCFB 8983.

 4   Correspondence – 2014 Part-day public holidays.

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