FWAFB 10738
FAIR WORK AUSTRALIA
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 6, Sch. 5 - Modern awards review
JUSTICE ROSS, PRESIDENT
MELBOURNE, 21 DECEMBER 2012
Review of modern awards - Part-day public holidays - ambiguity and uncertainty - s.160 Fair Work Act 2009
 This matter arises in the context of the 2012 Modern Awards Review that the Tribunal is conducting pursuant to item 6 of Part 2 of Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
 This decision deals with one aspect of the public holiday matters, which have been referred to this Full Bench, namely the resolution of ambiguities and uncertainties arising from part-day public holidays which have been proclaimed for Christmas Eve and New Year’s Eve.
 On 6 December 2012, the President received correspondence from the Hon Russell Wortley MLC, the South Australian Minister for Industrial Relations (the SA Minister). The correspondence raised certain issues about part-day public holidays in South Australia and requested Fair Work Australia to consider utilising its powers pursuant to s.160 of the Fair Work Act 2009 (the Act) “to vary relevant modern awards prior to 24 December 2012 to remove the ambiguities relating to part-day public holidays”.
 The issues raised in the Minister’s correspondence were the subject of a conference before Commissioner Hampton in Adelaide on 12 December 2012, with video links to other states. The Commissioner prepared a report arising from that conference, dated 14 December 2012. A copy of the report was placed on the Tribunal’s website.
 On 14 December 2012 we issued directions for the hearing of this matter directing all interested parties to file any submissions they wish to make by close of business on Monday 17 December 2012. Having regard to the submissions filed the Commissioner prepared a supplementary report, dated 18 December 2012, which is also available on the Tribunal’s website.
 We have had regard to all of those submissions and to the oral submissions made at the hearing on 19 December 2012.
 The relevant statutory provisions are set out in Commissioner Hampton’s reports and we need not repeat them here. For present purposes, it is only necessary to observe that modern awards operate within the framework of the Act and this includes the provisions of the National Employment Standards (the NES) with respect to public holidays (see ss. 115-116).
 It is clear from these provisions that the NES contemplates that part-day public holidays may be declared or prescribed by or under a law of a State or Territory and any modern award provision may provide the same or a supplementary effect, but will not operate to contravene the relevant standard.
 We now turn to the substance of the matter before us.
 In April this year the Statutes Amendment (Shop Trading and Holidays) Act 2012 (SA) amended the Holidays Act 1910 (SA). These amendments relevantly established two additional part-day public holidays to operate throughout South Australia on Christmas Eve (24 December) and New Year’s Eve (31 December), between the hours 7.00 pm and midnight.
 There are a number of issues that arise through the interaction of the part-day public holidays and the common public holiday provisions found in many modern awards. These include the following:
(i) Annualised salary arrangements: Some modern awards contain annualised salary arrangements. These provide that if an employee on an annualised salary works on a public holiday, that employee would be entitled to a full day off in lieu or a day added to their annual leave entitlement. The application of that concept, to part-day public holidays of the kind being considered here, is not beyond doubt.
(ii) Rostered day off arrangements: Many modern awards provide a system of rostered days off (RDO). Some provide that if part of an employee's RDO falls on a public holiday they are entitled to 7.6 hours (or a day’s) pay, an extra day of annual leave or a substitute day off on an alternative week day. The application of these concepts, to part-day public holidays of the kind being considered here, is problematic.
(iii) Annual close down arrangements: Some modern awards contain provisions concerning annual close-downs. They provide in effect that an employee is not considered to be on annual leave if a day falling in that period is a public holiday (which would include a part-day public holiday). This clearly operates in the context of s.89(1) of the Act as part of the NES. How this concept operates in the case of a part-day public holiday that falls outside of the ordinary hours of some employees is uncertain.
(iv) Time off for work performed on a public holiday: Some modern awards directly provide a day of time off in lieu of any work performed on a public holiday. The application of these concepts, to part-day public holidays of the kind being considered here, is ambiguous.
(v) Minimum Engagement provisions: Most modern awards have minimum engagement provisions in relation to work on public holidays. Depending upon the precise terms of the awards in question and how they are applied, the minimum engagement provisions might relate specifically to work on the public holiday or alternatively, in relation to each (daily) engagement.
 We are satisfied that the proclamation of the part-day public holidays has given rise to a number of ambiguities and uncertainties in the provisions of the modern awards we propose to vary.
 Section 160 of the Act provides that the Tribunal may act on its own initiative to vary one or more modern awards to remove ambiguity or uncertainty, as follows:
“160 Variation of modern award to remove ambiguity or uncertainty or correct error
(1) FWA may make a determination varying a modern award to remove an ambiguity or uncertainty or to correct an error.
(2) FWA may make the determination:
(a) on its own initiative; or
(b) on application by an employer, employee, organisation or outworker entity that is covered by the modern award.”
 Those parties presently supporting variations to the modern awards are asking the Tribunal to exercise the powers contemplated in s.160 of the Act.
 During the course of the hearing on 19 December 2012 we decided to make a range of marginally different determinations affecting some 113 modern awards. The determinations are necessary to resolve the ambiguities and uncertainties in the relevant awards.
 The determinations we have decided to issue are largely based on the draft determination attached to Commissioner Hampton’s supplementary report on 18 December 2012.
 Each determination will in effect operate from the first pay period on or after 23 November 2012 to ensure that the determinations are operative prior to the part-day public holidays. In the context of this matter we are satisfied that there are exceptional circumstances, within the meaning of s.165(2), that justify specifying this retrospective operative date. The determinations were largely unopposed and we wish to express our appreciation to the various industrial parties for the efforts they have made to resolve these matters within a very short period of time.
 Draft determinations were placed on the Fair Work Australia website on 20 December 2012 and parties were given an opportunity to comment.
 We delegate the finalisation of the determinations to Commissioner Hampton in line with the approach adopted by the Full Bench to this matter. It is anticipated that the determinations will be finalised later today.
 We wish to make it clear that these determinations are made on an interim basis only and this is why the determinations refer to 2012. The position taken by the various parties in these proceedings is without prejudice to the position they may take in any subsequent consideration of these issues. We also note that the issues arising from part-day public holidays require more comprehensive review, which should be undertaken after we have dealt with the substantive public holiday issues raised in the Modern Awards Review 2012.
E. Watt for the Timber Merchants Association Victoria
T. Evans and O. Webb for the Australian Hotels Association
H. Lepahe for Australian Business Industrial.
M. Mead for the Australian Industry Group.
L. Weber and E. McCoy for the Australian Council of Trade Unions.
M. Donovan and D. Blairs for the Shop, Distributive and Allied Employees’ Association.
R. Read and A. Borg for the Construction, Forestry, Mining and Energy Union.
V. Wiles for the Textile, Clothing and Footwear Union of Australia.
S. Hills for the South Australian Wine Industry Association.
R. Carney for Business South Australia.
M. Sheahen for the Motor Trade Association of South Australia Inc.
T. Earles for Masters Builders Australia.
M. Boland for the South Australian Minister for Industrial Relations.
J. Nolan and N. Swancott for United Voice.
G. Starr for the Australian Manufacturing Workers Union.
A. Kentish for the Communications, Electrical and Plumbing Union.
M. Adler for the Housing Industry Association.
G. Parks for the Restaurant and Caterers Association.
A. Grayson for the Maritime Union of Australia.
Melbourne, Sydney and Adelaide (video hearing)
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