FURTHER STATEMENT

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

Part-day public holidays
(AM2014/301)

4 yearly review of modern awards – common issue – public holidays – part-day public holidays.

[1] On 15 June 2018 we issued a Statement 1 concerning part-day public holiday provisions that are contained in most modern awards. That Statement invited submissions on the matter, including responses to two options dealing with various “Interim” schedules which have now operated for 6 years.

[2] The options raised with the parties as a means to finalise the arrangements were as follows:

•  Make each of the existing schedules ongoing, by deleting reference to any particular year. This would involve a determination(s) being issued to vary each of the relevant modern awards. If this option were adopted, the Full Bench may also permit any interested party to make a specific contrary application, which would be considered and dealt with in advance of the part-day public holidays scheduled for later this year (Option 1); or

•  Convene a conference of all interested organisations with a view to exploring whether separate schedules (or particular provisions within the awards concerned) are actually required across the modern awards, and if so, the appropriate provisions (Option 2).

[3] A number of submissions have been made in response to the Statement. The Australian Industry Group and the Australian Hotels Association have suggested that Option 1 be adopted on the basis that there have been no significant issues identified with the operation of the various award schedules containing the part-day public holiday provisions.

[4] SA Unions, the Shop, Distributive and Allied Employees Association (SDA) and United Voice have proposed that Option 2 be adopted on the basis that the existing schedules unnecessarily replicate rights and entitlements under the Fair Work Act 2009 and could be deleted, with any operative provisions placed into the body of the relevant modern awards. The SDA and United Voice also provided an analysis 2 of the replicated provisions and the operative clauses that could be inserted into the body of the General Retail Industry Award 2010 and the Aged Care Award 2010, respectively.

[5] In light of the various initiatives undertaken by the Commission to remove duplication from modern awards as part of the 4-yearly review, we consider that the potential to rationalise the number or extent of part-day public holiday schedules should be further assessed. We are also mindful of the need to provide some ongoing certainty to parties around this issue.

[6] To that end, Commissioner Hampton will convene a conference of interested parties to explore this approach on behalf of the Full Bench.

[7] In the circumstances, we would favourably consider any agreed variations to simplify the relevant provisions of the relevant modern awards. In the absence of agreement, it is likely that the Full Bench will consider applying Option 1 so as to ensure certainty for all parties whilst any ongoing consideration of the provisions is undertaken.

[8] Details of the conference, and an invitation for parties to comment on the concept advanced by the SDA and United Voice, will be issued shortly.

VICE PRESIDENT

 1   [2018] FWCFB 3516.

 2   Appended to the submission of SA Unions dated 6 July 2018.

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