| [2018] FWCFB 6540 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
Part-day public holidays
(AM2014/301)
VICE PRESIDENT HATCHER |
SYDNEY, 7 NOVEMBER 2018 |
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] The Full Bench issued a Further Statement 5 on 14 September 2018 directing any interested parties to provide written submissions in relation to the approach set out in the Report, or any other approach to the issues identified in that Report.
[6] Written submissions were provided by the Shop Distributive and Allied Employees' Association (SDA), the Housing Industry Association Ltd (HIA), the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), the South Australian Wine Industry Association (SAWIA), Master Builders Australia (MBA), the Australian Industry Group (AI Group), United Voice and the Australian Hotels Association (AHA).
[7] The approach set out in the Report was supported by the SDA, HIA and AHA who each confirmed their position in writing. SAWIA also supported the approach and confirmed its view that there may be capacity for the Schedules to be further simplified and that this could be dealt with as part of the completion of the 4 yearly review.
[8] United Voice supported the approach generally but sought that any decision issued by the Full Bench expressly recognise the capacity for parties to make an application to vary one or more modern awards, including the removal of the Schedules, in relation to part-day public holiday provisions.
[9] AI Group similarly generally supported the approach outlined in the Report; however it submitted that the Schedules should not be amended to note that they will be further considered as part of the finalisation of the present 4 yearly review, as it considered that a general review of the Schedules was not necessary or warranted.
[10] The CFMMEU was also generally supportive of the approach set out in the Report but contended that it was not appropriate to require interested parties to make applications to vary awards where the changes are self-evident. Rather, the Full Bench should consider acting on its own motion pursuant to s.160 of the Act to vary one or more modern awards to remove ambiguity or uncertainty. The CFMMEU also contended that in order to remove uncertainty the relevant awards should be amended to apply the Schedules to all part-day or half-day public holidays. In support of this, it attached a draft part-day public holiday Schedule for the Building and Construction (General) On-Site Award 2010 (the On-site Award).
[11] The MBA contended that given a number of issues pertaining to public holidays remain pending in the award-stage review, it would be inappropriate for any proposal to amend the part-day public holiday Schedule for those awards until those proceedings have reached their conclusion. It also provided submissions in relation to the consequences that any change to the Schedules would have in relation to the On-Site Award and the Joinery and Building Trades Award 2010 as proposed by the CFMMEU and discussed in the Report.
[12] Submissions in reply were subsequently provided by HIA, MBA and AI Group.
[13] AI Group confirmed its reliance on the submissions previously filed.
[14] HIA took issue with the CFMMEU’s proposition regarding when applications from parties would be required. HIA and the MBA both contended that the CFMMEU’s proposals for the award Schedules would expand the application of the current provisions and changes of this nature should be made by way of formal variation application and be subjected to probative evidence in support of the need to vary the Schedule on an award by award basis.
[15] The MBA also advanced the view that that it would not support the position that there was any ambiguity or uncertainty in the provisions set out in the Schedule.
[16] No party sought a hearing in relation to the matter and we consider that it is appropriate to determine the issues based upon the materials already before the Full Bench.
[17] Having regard to the circumstances of this matter and the positions advanced by the parties, we consider that the following issues arise for determination of the Full Bench.
[18] Consistent with the preliminary views set out in the Report, we consider that it is appropriate to vary the existing Schedules to make them ongoing. In particular, the present Schedules have some work to do and the Christmas Eve and New Year’s Eve Public Holidays are now only a few months away. In all of the circumstances we consider that the amendment of the schedules is necessary to ensure that the modern awards concerned achieve the modern awards objective set out in s.134 of the Act. 6 In addition, if there is to be any award by award consideration of whether the Schedules are required in their present form, this will take some time and will require that all of the other terms of the modern awards that bear upon this issue have been finalised. This finalisation will not take place until the (other) terms of the modern awards are resolved as part of the 4 yearly review.
[19] It would be evident from the above that we have not yet finally determined whether the Schedules should all remain in their present form. We consider that some provisions dealing with part-day public holidays will be necessary in some, if not most, modern awards. This is reinforced by the view taken by successive Full Benches that the Schedules are necessary to remove ambiguity or uncertainty from the awards concerned pertaining to part-day public holidays. However, we are open to a number of options that might be considered once the terms of the modern awards that impact upon the Schedules have been finalised as part of the 4-yearly review. These include to:
• Leave the Schedules in the present form;
• Amend the Schedules to include provision for all part-day public holidays;
• Amend the Schedules to include other provisions; and
• Incorporate the operative provisions in the body of the modern awards.
[20] Consistent with the approach taken by the Commission in the 4-yearly review, it may act of its own motion to explore these matters. Further, some of these potential 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 the modern awards objective. 7 In the latter case, the Commission expects parties with an interest to advance probative cases to support changes of that nature.
[21] Given the operation of the Act and the terms of this decision, we consider that it is not presently necessary to set out any provisions dealing with the further review of the award within those Schedules.
[22] A Determination giving effect to our decision is being issued in conjunction this Decision.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR701677>
3 Issued on 19 July 2018.
4 [2018] FWC 4713, issued on 23 August 2018.
6 This is consistent with the provisional views, subsequently confirmed with the variation determination issued in 2017, extending the effective life of the Schedules – see Statement Part-day public holidays [2017] FWCFB 5893.
7 See 4 Yearly Review of Modern Award – Preliminary Jurisdictional Issues Decision [2014] FWCFB 1788 at [19] to [27] and 4 Yearly Review of Modern Awards – Public Holidays [2018] FWCFB 4 at [14] to [18].