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 1 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). A number of conferences were held between November 2014 and March 2015 to determine the scope of the Public Holidays common issue and to discuss timetabling arrangements. A five member Full Bench has now been constituted to deal with the public holidays common issue as part of the Review.

[2] During consultations in this matter 2 and the Penalty Rates matter (AM2014/305)3 it was determined that the Penalty Rates Full Bench will deal with the quantum of any penalty rate that applies on a public holiday as well as the proposition that there be two tiers of public holiday. Matters regarding other public holiday conditions will be dealt with by the Public Holidays Full Bench, including applications regarding non-working days (i.e. when an employee is not rostered to work on a public holiday4, and weekend public holidays, including substitute public holidays) 5.

[3] As outlined in a Statement issued on 19 March 2015 6 (the March Statement), 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 in more detail below.

Part-day public holidays

[4] On 13 May 2015 Commissioner Hampton held a conference of parties with an interest in the part-day public holidays issue. As outlined in the March Statement, there are two aspects related to the part-day public holidays issue. The first is the settlement of the final conditions relating to part-day public holidays in modern awards and the second issue concerns the penalty rate to be applied to part-day public holidays.

[5] The conference was convened to attempt to settle arrangements for the 2015 part-day public holidays to provide certainty about the arrangements before the end of 2015. Commissioner Hampton issued a Statement on 15 May 2015 7, following the conference that recommended that the Full Bench issue a draft determination in the form issued in 2014 but with any references to ‘2014’ amended to ‘2015’. The Commissioner also recommended, subject to any objections, that the Full Bench consider making the determination on the papers without conducting a further hearing.

[6] The making of any determination consistent with this Report will be a matter for the Public Holidays Full Bench.

[7] The issue of the penalty rate and other conditions applying to part-day public holidays beyond 2015, along with the claims outlined below will be considered by the Public Holidays Full Bench following the conclusion of the Penalty Rates matter (AM2014/305).

Employer claims

[8] As set out in the March Statement, The Australian Hotels Association (AHA) are proposing 8 to insert certain provisions from Schedule H—Part-day Public Holidays of the Hospitality Industry (General) Award 2010 (the Hospitality Award) into the body of the modern award and to delete the schedule.

[9] Clubs Australia Industrial are seeking changes to the public holidays clause in the Registered and Licensed Clubs Award 2010. 9 The claim specifically seeks:

“X.1 that the days which are to be regarded as public holidays for the purposes of the Award be defined by the Award;

X.2 subject to paragraph X.3 below, that employees only be entitled to one public holiday in respect of each celebration (either the day itself or any day substituted for the day itself); and

X.3 that employees be entitled to be paid for absences on a public holiday only if they would have ordinarily worked on that day (and not otherwise) by the deletion of clause 34.3(a) and (b) of the Award.”

[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.

Non-working day claims

[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 ANMF claim specifically seeks to insert a new clause 32.4 in the Nurses Award 2010, as follows: 10

“A part-time employee who is ordinarily not required to work on the day of the week on which a particular holiday is observed shall not be entitled to any benefit for any such public holiday unless:

(a) he or she is required to work on the public holiday or the employee has worked on the day of the week the particular public holiday falls on 50% or more occasions over the last six months; or

(b) the employee has worked on that day 50% or more of the time since employment commenced where that employment has been for less than six months.”

[13] The Australian Council of Trade Unions (ACTU) stated in its correspondence of 13 February 2015 that the following awards are the subject of the non-working days claim: 11

Mannequins and Models Award
General Retail Industry Award
Fast Food Industry Award
Hair and Beauty Industry Award
Pharmacy Industry Award
Storage Services and Wholesale Award
Vehicle Manufacturing, Repair, Services and Retail Award
Aboriginal Community Controlled Health Services Award
Aged Care Award
Health Professionals and Support Services Award
Nurses Award
Social, Community, Home Care and Disability Services Industry Award

Weekend public holidays claims

[14] 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.

[15] The AMWU seek to vary the Food, Beverage and Tobacco Manufacturing Award 2010, the Graphic Arts, Printing and Publishing Award 2010, the Manufacturing and Associated Industries and Occupations Award 2010, and the Vehicle Manufacturing, Repair, Services and Retail Award 2010. The proposed draft clause is as follows: 12

“X.1 Where any public holiday falls on a Saturday or a Sunday and the public holiday is substituted for another day, an employee working on the public holiday shall receive a loading of [150%] of the employee’s ordinary rate for the hours worked on the public holiday.

X.2 Where any public holiday falls on a Saturday or a Sunday and the public holiday is substituted for another day, an employee working on the substituted day shall receive a loading of [50%] of the employee’s ordinary rate for the hours worked on the substituted day.”

[16] The HSU seek to vary the Aboriginal Community Controlled Health Services Award 2010, Aged Care Award 2010, Ambulance and Patient Transport Award 2010, Health Professional and Support Services Award 2010, Nurses Award 2010, and the Social, Community, Home Care and Disability Services Industry Award 2010. The proposed draft clause is as follows: 13

“Additional Public Holiday Loading

(a) An employee working on Christmas Day, Boxing Day or New Year’s 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 xx% of their ordinary time rate for the hours worked on that day and be entitled to the benefit of the substitute day.

(b) This loading is cumulative with the rates prescribed in Clause XY – Saturday and Sunday work.”

[17] The ACTU stated in its correspondence of 13 February 2015 that the following awards are the subject of the weekend public holidays claim: 14

Food, Beverage and Tobacco Manufacturing Award
Graphic Arts, Printing and Publishing Award
Manufacturing and Associated Industries and Occupations Award
Vehicle Manufacturing, Repair, Services and Retail Award
Aboriginal Community Controlled Health Services Award
Aged Care Award
Ambulance and Patient Transport Industry Award
Health Professionals and Support Services Award
Social, Community, Home Care and Disability Services Industry Award

[18] Some coordination of the position of the union parties would be desirable. Further, the programming of evidence and submissions in the Public Holidays proceedings should have regard to other matters being dealt with under the 4 yearly review. These issues are matters for the Public Holidays Full Bench.

PRESIDENT

 1   Statement [2014] FWC 1790 – 17 March 2014.

 2   Correspondence ABI, 24 February 2015; Transcript, 13 March 2015 at PN 14.

 3   Transcript, 2 March 2015 at PN258–262.

 4   See para 11 of this Statement.

 5   See para 14 of this Statement.

 6   Statement [2015] FWC 1921 – 19 March 2015.

 7   Statement [2015] FWC 3317– 15 May 2015

 8   Correspondence – 2014 Part-day public holidays.

 9   Submission – 12 February 2015

 10   Brief outline of submissions – 13 February 2015

 11   Correspondence – 13 February 2015

 12   Brief outline of submissions – 13 February 2015

 13   Brief outline of submissions – 13 February 2015

 14   Correspondence – 13 February 2015

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