PR532631

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FAIR WORK AUSTRALIA

DETERMINATION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 6, Sch. 5 - Modern awards review

Fair Work Act 2009
s.160—Variation of modern award

Part-day public holidays
(AM2012/355)

JUSTICE ROSS, PRESIDENT DEPUTY PRESIDENT SMITH COMMISSIONER HAMPTON

ADELAIDE, 21 DECEMBER 2012

Part-day public holidays variation.

A Further to the Decision issued on 21 December 2012 [[2012] FWAFB 10738], it is ordered that the awards listed in Appendix A be varied as follows:

1. By inserting a new schedule following the last schedule as follows:

Schedule X—2012 Part-day public holidays

This schedule operates in conjunction with award provisions dealing with public holidays.

X.1 Where a part-day public holiday is declared or prescribed between 7.00pm and midnight on Christmas Eve (24 December 2012) or New Year’s Eve (31 December 2012) the following will apply on Christmas Eve and New Year’s Eve and will override any provision in this award relating to public holidays to the extent of the inconsistency:

(a) All employees will have the right to refuse to work on the part-day public holiday if the request to work is not reasonable or the refusal is reasonable as provided for in the NES.

(b) Where a part-time or full-time employee is usually rostered to work ordinary hours between 7.00pm and midnight but as a result of exercising their right under the NES does not work, they will be paid their ordinary rate of pay for such hours not worked.

(c) Where a part-time or full-time employee is usually rostered to work ordinary hours between 7.00pm and midnight but as a result of being on annual leave does not work, they will be taken not to be on annual leave between those hours of 7.00pm and midnight that they would have usually been rostered to work and will be paid their ordinary rate of pay for such hours.

(d) Where a part-time or full-time employee is usually rostered to work ordinary hours between 7.00pm and midnight, but as a result of having a rostered day off (RDO) provided under this award, does not work, the employee will be taken to be on a public holiday for such hours and paid their ordinary rate of pay for those hours.

(e) Excluding annualised salaried employees to whom clause X.1(f) applies, where an employee works any hours between 7.00pm and midnight they will be entitled to the appropriate public holiday penalty rate (if any) in this award for those hours worked.

(f) Where an employee is paid an annualised salary under the provisions of this award and is entitled under this award to time off in lieu or additional annual leave for work on a public holiday, they will be entitled to time off in lieu or pro-rata annual leave equivalent to the time worked between 7.00 pm and midnight.

(g) An employee not rostered to work between 7.00pm and midnight, other than an employee who has exercised their right in accordance with clause X.1(a), will not be entitled to another day off, another day’s pay or another day of annual leave as a result of the part-day public holiday.

(h) Nothing in this schedule affects the right of an employee and employer to agree to substitute public holidays.

This schedule is an interim provision and subject to further review.

2. By updating the table of contents accordingly.

B. This determination comes into operation on and from the first full pay period commencing on or after 23 November 2012.

COMMISSIONER

Appendix A

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