| [2019] FWCFB 1369 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards – Public Holidays
(AM2014/301)
VICE PRESIDENT HATCHER |
SYDNEY, 18 APRIL 2019 |
4 yearly review of modern awards – common issue – public holidays – Registered and Licenced Clubs Award 2010.
[1] This decision concerns an application made by Clubs Australia Industrial (CAI) to vary the Registered and Licenced Clubs Award 2010 (Clubs Award) as part of the 4 yearly review being conducted by the Commission under s 156(1) of the Fair Work Act 2009 (FW Act). In particular, the application has been made as part of the review of a number of modern awards in relation to public holiday provisions.
[2] We note that s 156 was repealed by the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 effective retrospectively from 1 January 2018, but clause 26 of Schedule 1 to the FW Act (which was added by the amending Act) requires the Commission to continue to apply s 156 to the current review as if had not been repealed.
[3] The further context for this decision is set out in a decision of this Full Bench dealing with other aspects of public holiday provisions in modern awards. In 4 yearly review of modern awards – Public Holidays, 1 issued in March 2018 (March 2018 Decision), we determined that the CAI application would not be determined pending the outcome of another CAI application to, in effect, subsume the coverage of the Clubs Award into the Hospitality Industry General Award 2010 (Hospitality Award). Parties with an interest in the CAI application to amend the public holiday provisions did however present evidence and submissions at that time to enable us to determine the matter should the Clubs Award remain.
[4] Recently, a differently constituted Full Bench determined 2 that the coverage of the Clubs Award would remain and not be subsumed into the Hospitality Award. As a result, it is now appropriate to deal with the CAI public holiday application.
[5] This decision should be read in conjunction with the March 2018 Decision.
[6] The CAI application as finally advanced 3 comprises two aspects. Firstly, there is a claim to modify the provisions of clause 29.3(c) of the Clubs Award to clarify the circumstances in which certain payments and associated arrangements are to apply when Christmas Day falls on a weekend (Christmas Day claim).
[7] Secondly, CAI seeks the deletion of the current clause 34.3 of the Clubs Award, which provides additional arrangements for full-time employees when a rostered day off (RDO) falls on a public holiday (RDO claim).
[8] The effect of the two claims is best illustrated by the following amended Draft Determination provided by CAI:
1. Vary clause 29.3(c) to add the words in italics as follows:
(c) An employee other than a casual working on Christmas Day when it falls on a weekend, and is not prescribed as a public holiday under the NES, will be paid an additional loading of 50% of their applicable ordinary hourly rate for the hours worked on that day and will also be entitled to the benefit of a substitute day.
2. Vary clause 34.3 to delete (a) and (b) as follows:
34. Public holidays
34.1 Public holidays are provided for in the NES.
34.2 By agreement between the employer and the majority of employees in the relevant enterprise or section of the enterprise, an alternative day may be taken as the public holiday instead of any of the days prescribed in s.115 of the Act.
34.3 Additional arrangements for full-time employees
(a) A full-time employee whose rostered day off falls on a public holiday must, subject to clause 29.3:
(i) be paid an extra day’s pay;
(ii) be provided with an alternative day off within 28 days; or
(iii) receive an additional day’s annual leave.
(b) Clause 34.3(a) does not apply in relation to Easter Saturday, if employees have their ordinary hours rostered only on Monday to Friday.
(c) A full-time employee who works on a public holiday which is subject to substitution as provided for by the NES will be entitled to the benefit of the substitute day.
[9] The CAI application is opposed by United Voice.
[10] We note for completeness that public holiday substitution arrangements of the particular kind found in subclause 34.2 are currently the subject to separate proceedings. 4
CAI
[11] CAI’s submissions emphasised what it described as the significant impact of public holiday provisions in light of the proportion of full and part-time employees in the clubs sector, the inclusion of management employees under the Clubs Award, the high incidence of public holiday trading for clubs, and the increasing number of proclaimed public holidays.
[12] In relation to the Christmas Day claim, CAI contended that historically it had been the case that where Christmas Day fell on a weekend, in most jurisdictions the public holiday was transferred over to the next Monday. The more recent practice in most States and Territories was for there to be two public holidays – that is, an additional rather than a substitute day. In those circumstances, CAI sought that the extra loading for Christmas Day only be paid where public holiday rates are not otherwise payable. It posited that the proposed change has been made in a number of other awards and CAI contended that it would remove any ambiguity and unintended consequences present in the current provision.
[13] In relation to the RDO claim, CAI contended that clause 34.3 excludes the operation of s 116 of the FW Act by providing for an entitlement to payment under Division 10 when the employee does not have ordinary hours of work on a public holiday. Further s 116 makes it clear that payment for public holidays is only an entitlement when an employee would have had ordinary hours on that day, and not otherwise. Such a term would not contravene s 55(1) only if it was ancillary or incidental to the public holidays entitlements of the NES (s 55(4)). However, CAI submits that the provision should not be considered to be supplementary because it is inconsistent with s 116 and it could not have been Parliament’s intention that the FWC could make general provisions for higher standards. 5
[14] In that light, CAI contended that clause 34.3 should be removed both to ensure consistency with the NES and as a matter of industrial merit.
[15] CAI led evidence from Mr Anthony Trimachi, Manager - Policy and Government from CAI, and from a Chief Executive Officer and a General Manager of their respective clubs in New South Wales.
United Voice
[16] In opposing the CAI application, United Voice contended, in effect, that the claims were designed to reduce the existing safety net of conditions and that no justification had been advanced to warrant that outcome. In support of that view, it submitted that:
• the current public holiday provisions are part of the fair and relevant safety net of terms and conditions established by the Commission;
• under the FW Act, the Clubs Award can provide terms more beneficial than the NES and this had been done;
• the provisions supplemented the NES and did not contravene the provisions;
• the current public holiday provisions reflect long established principles;
• the proposed changes were significant and CAI has not advanced cogent reasons or a sufficient evidentiary basis to justify the departure from well-established principles associated with the regulation of public holidays or to support the notion that any change was necessary to meet the modern awards objective; and
• there was limited evidence before the Commission that public holidays impose an unusual cost burden when compared to other awards covering the hospitality sector.
[17] In relation to the Christmas Day claim, United Voice contended that this would “reduce permanent club workers remuneration when Christmas Day falls on a weekday, lacks generosity and deprives governments other than the Commonwealth government of the ability to regulate entitlements around Christmas day.” 6
[18] In relation to the RDO claim, United Voice contended that the effect of the proposal would be unfair to full-time club employees as it would deny them current entitlements to RDOs. Further, it submitted that if CAI's variation were successful, employers would have the ability to roster days off so that they coincided with public holidays. This, it contended would:
• be the equivalent of an employer requiring an employee with a weekday roster to work on a Saturday with no additional pay because Monday was a public holiday; and
• result in a situation whereby, if the employer chose to set the employee’s accrued day off on a public holiday, the employee would have simply worked those additional hours for no additional pay; and
• reduce the employee’s total number of days off in a year, which would have substantial impacts on the employee's health and remuneration.
[19] The modern awards objective is to “ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net of terms and conditions”, taking into account the particular considerations identified in paragraphs (a)-(h) of s 134(1). We have taken those considerations into account insofar as they are relevant to the matter before us.
[20] In the March 2018 Decision we outlined the approach required by the FW Act to be applied to the 4 Yearly Review. 7 This included that in assessing the modern award objective set out in s 134, amongst other considerations, the Commission would have regard to whether any proposed change was significant. In those circumstances an application would need to be supported by appropriate submissions and probative evidence directed to demonstrating the facts supporting the proposed changes.8
[21] The March 2018 Decision also comprehensively set out the statutory and historical context for public holidays in modern awards. 9 This included the relationship with the National Employment Standards (NES) and the role played by State and Territory Governments in prescribing the actual public holidays.10
The Christmas Day claim
[22] The evident intention of provisions such as clause 29.3(c) is that where Christmas Day falls on a weekend and the public holiday is moved as a result of the operation of State and Territory public holiday laws (a substitute day occurs) the significance of the actual day is recognised by the inclusion of some additional penalty and related arrangements. Where an additional day is created, which now occurs more often than not, both the original and additional day are public holidays. In those circumstances, we do not consider that it was intended or is appropriate that the additional penalty, beyond the public holiday penalty already applying, is paid. 11
[23] Given that intent and the more recent change to generally apply substitute public holiday arrangements for Christmas Day 12 it is appropriate to remove any potential uncertainty about the operation of clause 29.3(c) of the Clubs Award.
[24] In terms of the considerations in s 134(1) we assess that these are largely neutral considerations in relation to this particular claim. We have however had regard to the fact that most of the employees under the Award would be considered to be low paid employees 13 and that the change may have a very marginal impact given the infrequency of the circumstances contemplated by the provision. The change is consistent with making the Award easy to understand.14
[25] Fundamentally, we consider that the change is warranted on its face and is appropriate to ensure that the Clubs Award, together with the NES, provides a fair and relevant minimum safety net of terms and conditions.
The RDO claim
[26] In the March 2018 Decision, we indicated that a clause of the nature proposed by the Shop, Distributive and Allied Employees Association in relation to non-working days and public holidays would be a supplementary provision to the NES as contemplated by s 55(4)(b) of the FW Act. 15 We hold the same view about the present clause 34.3 of the Clubs Award.
[27] Accordingly, clause 34.3 is not inconsistent with the NES and there is no cause to remove the provision on that ground.
[28] We consider that the removal of clause 34.3 from the Award would represent a significant change. For reasons outlined earlier, this would require some appropriate submissions and probative evidence directed to demonstrating the facts supporting the proposed change. There is no probative evidence that supports the proposed change beyond concerns about the perceived impact of public holiday provisions more generally.
[29] We accept the proposition advanced by CAI that, in general terms, payments for public holidays that are not worked under the NES are intended to apply where the employee concerned would otherwise have ordinary hours to work on the day in question. 16
[30] However, under the Clubs Award, the RDOs apply to ensure that full-time employees have two days off each week 17 and may also operate as part of the roster arrangements to provide the (averaged) ordinary hours per week.18 Full-time employees work their ordinary hours according to a roster and the employer may require an employee to take their rostered day off on any day of that week. Rosters are set upon two weeks’ notice, or shorter by agreement.19
[31] As a result, clause 34.3 is an important component to ensure that the integrity of the hours of work arrangements of this Award is maintained. We note that such provisions are not uncommon in modern awards where RDO systems apply. 20
[32] We also note that, prior to the making of the Clubs Award, similar provisions to that now found in clause 34.3 were contained in most of the pre-modern awards and Notional Agreements Preserving State Awards. Provisions of this kind are also found in other awards now operating in the hospitality sector including the Hospitality Award 21 and the Restaurant Industry Award 2010.22
[33] In terms of the considerations in s 134(1) we assess that, based upon the material before the Commission, these are largely neutral considerations in relation to this particular claim. However, the potential impact upon the low paid employees (s 134(1)(a)) is a factor militating against the proposal.
[34] Fundamentally, we consider that the change is not appropriate and the removal of the provision is not necessary to ensure that the Clubs Award, together with the NES, provides a fair and relevant minimum safety net of terms and conditions.
[35] A determination 23 giving effect to our decision to amend clause 29.3(c) of the Award is issued conjunction with this decision.
[36] Subject to certain limited matters that are currently before other Full Benches of the Commission, this completes the review of the public holiday common interest matters as part of the 4 yearly review.
VICE PRESIDENT
Appearances:
T McDonald, solicitor, with L Pike on behalf of Clubs Australia Industrial.
S Bull on behalf of United Voice.
Hearing details:
2017
Sydney, with video link to Melbourne
24, 25 and 26 July.
Held over pending the outcome of a Decision issued in a related matter on 21 March 2019.
Printed by authority of the Commonwealth Government Printer
<MA000058 PR705452 >
1 [2018] FWCFB 4, 275 IR 383
2 [2019] FWCFB 349, issued on 21 March 2019
3 CAI significantly modified its proposals in correspondence dated 20 July 2017
4 See 4 yearly review of modern awards – plain language re-drafting – status update [2019] FWCFB 1255 at [42]-[48]
5 CAI Further submissions, 30 March 2017
6 Final Submissions of United Voice, 15 June 2017
7 [2018] FWCFB 4, 275 IR 383 at [11]-[19]
8 Relying upon the 4 Yearly Review of Modern Award – Preliminary Jurisdictional Issues Decision [2014] FWCFB 1788
9 [2018] FWCFB 4, 275 IR 383 at [20]-[28]
10 [2018] FWCFB 4, 275 IR 383 at [119] and [138]
11 See Modern Awards Review 2012 - Public Holidays [2013] FWCFB 2168, 232 IR 119 at [94] and Variation to the Restaurant Industry Award 2010 [2013] FWC 7840 at [296]-[298] – this aspect was not overturned on the appeal of other matters [2014] FWCFB 1996, 243 IR 132
12 See the March 2018 Decision at [139]
13 Section 134(1)(a)
14 Section 134(1)(g)
15 [2018] FWCFB 4, 275 IR 383 at [82]
16 Queensland Nurses Union of Employees v Ramsay Health Care Australia Pty Ltd [2016] FCA 1486 at [23]-[28]
17 Clause 26.2
18 Clauses 26.3 and 26.7
19 Clause 25.2
20 See March 2018 Decision at [84]
21 Clause 37.1(b)
22 Clause 38.2