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 1 and 18 July 20182 we issued Statements concerning part-day public holiday provisions that are contained in most modern awards. The July Statement advised that Commissioner Hampton would convene a conference of interested parties to explore this matter on behalf of the Full Bench.

[2] In the lead up to that conference, the Commission issued a Background Paper³ setting out the history of the matter, the issues that were considered in reaching the original 2012 variations to the modern awards, and the various proposals that had been made in the context of the current Review.

[3] The conference was conducted on 10 August 2018 and a Report to the Full Bench 4 (the Report) was subsequently issued by Commissioner Hampton.

[4] The report noted the various issues, proposals and considerations relevant to the matter and observed that an immediate option might be considered in the following terms (footnotes omitted):

“[22] As a result, it would appear that the appropriate measure would be to consider making each of the present Schedules ongoing, but noting that they will be further considered as part of the finalisation of the present 4 yearly review. Further, applications to vary specific awards might also be made by parties with a relevant interest and considered by the Commission at an appropriate time. This approach would remove the uncertainty associated with the year by year approach, recognise that for some awards there is a prospect that the present Schedules will be maintained, whilst also allowing for the fact that alternative approaches might ultimately be taken. Those alternatives might include extending the provisions to all part-day public holidays, removing clauses that are not necessary and/or placing the relevant terms within the body of the modern awards.

[23] In terms of the framework of the Act, such an approach would appear to be consistent with the various decisions of the Commission which have found that the existing Schedules were necessary and with the approach adopted by the Commission to the assessment of the modern awards objective as part of this Review. Further, this approach would allow for the fact that some changes to the existing modern awards might be self-evident and others might require probative evidence so as to demonstrate a need to vary the award to provide for consistency with that objective. Further, this would recognise that the Review involves each modern award as a whole and there is some evident practical benefit in allowing this matter to be fully reviewed after the (other) substantive provisions of the modern awards have been finalised, including by having regard to the Commission’s approach to adopt plain language principles.

[24] This approach would mean, in effect, that the reference to the particular year in the terms of each Schedule would be removed. Further, the final clause in each award Schedule would be revised to note that the Schedule may be further reviewed as part of the 4 yearly review of modern awards, in lieu of the present reference to being an “interim” provision. Any decision issued by the Full Bench could also expressly recognise the capacity for parties to make an application to vary one or more modern awards in relation to the part-day public holiday provisions as part of this Review.”

[5] In light of the above, we consider that it is appropriate to adopt the approach set out in the Directions below.

DIRECTIONS

1. Parties with an interest in the matter may on or before 12 October 2018 provide written submissions in relation to the approach set out in the Report, or any other approach to the issues identified in that Report.

2. Written submissions in reply are to be provided by 19 October 2018.

3. Unless concluded otherwise, the Full Bench will then determine the matters based upon the submissions and materials before the Commission without conducting a further hearing.

4. Liberty to apply is granted, including for a party to seek a hearing in this matter.

5. All submissions shall be sent to amod@fwc.gov.au and will be published on the Commission’s website.

VICE PRESIDENT

 1   [2018] FWCFB 3516.

 2   [2018] FWCFB 4131.

3 Issued on 19 July 2018.

 4   [2018] FWC 4713, issued on 23 August 2018.

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