[2013] FWCFB 8938



Fair Work Transitional Provisions and Consequential Amendments) Act 2009

Item 6, Sch. 5 - Modern awards review

Modern Awards Review 2012



Review of modern awards - Part day public holidays - ambiguity and uncertainty - s.160 Fair Work Act

[1] This matter arises in the context of the 2012 Modern Awards Transitional Review that the Commission is conducting pursuant to item 6 of Part 2 of Schedule 5 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

[2] This decision deals with one aspect of the public holiday matters, which have been referred to this Full Bench, namely matters arising from part-day public holidays which had been proclaimed for Christmas Eve and New Year’s Eve.

[3] On 21 December 2012, we dealt 1 with the resolution of ambiguities and uncertainties which arose from the proclamation of part-day public holidays in South Australia for Christmas Eve and New Year’s Eve in December 2012. The Commission issued a range of determinations affecting 113 modern awards to resolve these ambiguities and uncertainties. Five separate draft determinations were published on the Commission’s website on 20 December 2012 and parties were given an opportunity to comment. Five final determinations were issued by the Commission on 21 December 2012.2 The final determinations added an interim schedule to 113 modern awards titled ‘2012 Part-day public holidays’.

[4] Correspondence was received by the Commission on 21 August 2013 from United Voice, 3 outlining that certain parties had held discussions regarding the need for a further interim schedule in the affected modern awards to take into account the part-day public holidays in South Australia in December 2013. In general terms, the proposal made by these parties involved extending the operation of the 2012 Part-day public holidays schedules to include those part-day public holidays this year. Further, the issue would be substantively considered as part of the 2014 Modern Awards Review to be conducted by the Commission.

[5] On 12 September 2013, we issued a Statement 4 establishing a process to deal with the proposal. This involved the convening of a conference, which took place before Commissioner Hampton on 26 September 2013.

[6] All of the parties appearing at the conference supported the continuation of the interim arrangements to cover the Christmas and New Year part-day public holidays that will take place in South Australia later this year. However, Australian Business Industrial (ABI) with the support of the Master Builders Association (MBA) and Restaurant and Catering Australia 5 (RCA) raised some concerns about the operation of one element of the “model” provision that is found in many of the modern awards that were varied late last year.

[7] The relevant provision is in a particular subclause 6 that appears in all but two of the schedules now appearing in the 113 modern awards that were varied. Those concerns had earlier been outlined in correspondence from ABI dated 6 September 2013.

[8] Although there are, in effect, three versions of the schedules with the subclause in question, the following schedule illustrates the context for the provision:

[9] The concerns are said to arise from the underlined text in subclause (g).

[10] Clause X.1(a) is a reference to the provision that recognises the right of an employee, in certain circumstances, to be absent on a public holiday as provided by s.114 of Fair Work Act 2009 (the Act).

[11] ABI suggests on one reading of the present provision, the underlined text means that employees who exercised their right under subclause (a) receive an additional benefit that was not intended. That is, the clause could be read as meaning that the employee reasonably refusing to work would receive pay for the public holiday hours not worked in circumstances where the employee would not have otherwise worked. Not only would that be double dipping, but would arbitrarily distinguish between those who chose not to work and those who were sent home before completing their rostered hours because the employer closed at the start of the public holiday. ABI contends that this is not what is intended by this exclusion, and that such an approach would not be reasonable. 8

[12] ABI has indicated that it is for the Commission to determine whether the subclause is ambiguous in the manner identified and, if so, whether the ambiguity is sufficient to warrant variation. Alternatively, ABI has suggested that the Full Bench might consider clarifying the operation of the relevant subclause in its decision when dealing with this matter.

[13] The RCA contends that the relevant subclause can be interpreted to give employees, including a casual exercising their right of refusal to work on a public holiday under the Act, additional full day entitlements creating an incentive to exercise the right and not to work. It was further contended that the original intent of the schedules was to ensure that the introduction of part-day public holidays in South Australia did not provide full day benefits under the various public holiday clauses contained in modern awards.

[14] The RCA argues that this “loophole” must be corrected and proposes the following alternative provision:

[15] The Australian Industry Group (AiG) has proposed a further alternative 9 as follows:

[16] We note that during the course of the hearing of this matter on 7 November 2013, a number of employer organisations expressed their support for the AiG proposal and this then became the preferred variation proposed by those employer organisations agitating for a variation.

[17] SA Unions, with the support of United Voice, the Shop, Distributive and Allied Employees Association (SDA), Construction, Forestry, Mining and Energy Union (CFMEU), and the Maritime Union of Australia (MUA) contend that in the absence of cogent evidence that the awards are not operating effectively or have created actual adverse consequences, the awards concerned should not be varied other than to cover the 2013 Christmas and New Year part-day public holidays.

[18] Business SA submitted that the interim schedules have operated as intended by providing necessary clarity for those businesses operating on any of the two part-day public holidays. Accordingly, it supports the retention of the schedules for the 2013 Christmas and New Year period.

[19] The Australian Shipowners Association and the Motor Trades Association of SA have also proposed that the relevant interim arrangements be extended to cover 2013 without further variation.

[20] The Construction, Forestry, Mining and Energy Union, Forestry and Furnishing Products Division has indicated that the alleged concerns raised by ABI do not apply to the Timber Industry Award 2010 and the interim arrangements for that award should be continued for the upcoming part-day public holidays without amendment.

[21] In a report dated 25 October 2013, Commissioner Hampton set out a recommended approach for dealing with the issue raised by ABI and others:

[22] At the hearing on 7 November 2013 there was general support for the draft determination proposed by Commissioner Hampton in relation to the Fast Food Industry Award 2010 and the Timber Industry Award 2010. No party opposed the making of the determination in the manner proposed and accordingly we have made the determination in those terms. 11

[23] We now turn to deal with the remaining 111 modern awards which contain a schedule dealing with part-day public holidays.

[24] The essential issue is whether the existing provision has left an ambiguity or uncertainty that should be addressed at this point. This requires an appreciation of the background and intended operation of the schedule. Much of the background is set out in the decision 12 leading to the making of the determinations in 2012 and what follows should be read in that context.

[25] The exception that appears in the subclause in question arises from the operation of the National Employment Standards (NES). In particular, s.116 of the Act which provides as follows:

[26] Further, the operation of the right to be absent from work on a public holiday as provided by s.114 of the Act is directly relevant. The provision is in the following terms:

[27] The relationship between the modern awards and the NES is established by s.55 and s.56 of the Act in the following terms:

[28] It is clear that the terms of a modern award (or an enterprise agreement) may replicate the terms of the NES, which will then operate in parallel, and may also deal with matters that are expressly delegated to modern awards by the NES. In addition, modern awards may also include terms that are ancillary or incidental to the operation of an entitlement of an employee under the NES or which supplement the NES, provided that the effect of those terms is not detrimental to an employee in any respect, when compared to the NES.

[29] Further, the terms of a modern award must not contravene the terms of the NES and any such provision is of no effect.

[30] The operation of the NES and the modern award provisions more generally, in the context of a part-day public holiday occurring at the end of what would be for many a normal work day, creates particular circumstances that have led to the schedules and subclause in question.

[31] The provisions of subclause X.1(a) of the schedules recognise the import of s.114 of the Act and subclause X.1(b) reflect the import of s.116. Subclause X.1(g) must be read within that context. The schedule as a whole is intended to address the fact that where an employee reasonably refuses to work those of his or her rostered hours which fall into the part-day public holiday hours in accordance with s.114, the employee is entitled to receive their ordinary rate of pay for such hours not worked, in accordance with s.116 of the Act.

[32] Accordingly, the exclusion in subclause X.1(g). is intended to clarify that the provision is not to be read as depriving the employee of the pay for those rostered hours falling within the part-day public holiday which were not worked in those particular circumstances.

[33] The subclause was not intended to detract from or supplement the NES, but rather to operate consistently with the standards in the context of these part-day public holidays.

[34] We note that although the RCA did advise that some issues were raised by some of its members, there is no evidence that the present provisions have caused actual difficulties in their application. We are also not aware of any disputes concerning these matters being notified to the Commission. In these circumstances, we would not normally be inclined to consider any variation. However, in our original decision concerning these matters we did find that ambiguities or uncertainties arose from the concept of the part-day public holidays in the relevant modern awards. 13 We also expressly provided for the variations to operate on an interim basis.

[35] On balance, we are satisfied that there is some remaining uncertainty about the operation of the schedules in the relevant modern awards.

[36] We add that during the course of the hearing of this matter, there was some discussion of the operation of the NES in the context of casual employees. It is not necessary or appropriate to deal with these issues given the limited nature of these proceedings and the above observations.


[37] In light of the above, there is no basis to make any significant change to the subclause, or the schedules, in question. We do however accept that some qualification to confirm the relationship between the modern award provisions concerned and the NES would assist to remove any remaining uncertainty on the immediate issue.

[38] Accordingly, we will make a determination varying each relevant schedule to add the following term:

[39] We note that the term “NES” is defined in each of the relevant modern awards.

[40] The determination will also confirm the extension of the schedules to deal with the relevant 2013 part-day public holidays as supported by all parties.

[41] A determination 14 varying the relevant awards is being made in conjunction with this decision. The determination establishes that the variation will come into effect on Thursday 21 November 2013. We note that the effect of the Act is that the determination will take effect in relation to employees at the start of each employee’s first full pay period that commences on or after that date.15



M. Adler for the Housing Industry Association.

D. Blairs for the Shop, Distributive and Allied Employees Association.

A. Borg for the Construction, Forestry, Mining and Energy Union.

T. E. Evans for the Australian Hotels Association.

L. Harrison for United Voice.

H. Lepahe for Australian Business Industrial.

A. Parkes for Restaurant and Catering Australia.

D. Putland for the Master Builders Association of South Australia, Master Builders Association of Australia and its various State-based registered organisations.

R. Read for the Construction, Forestry, Mining and Energy Union, Forestry and Furnishing Products Division.

E. Schuidder for the SA Wine Industry Association.

M. Sheehan for the Motor Trade Association of South Australia.

S. Smith for the Australian Industry Group.

A. Story for SA Unions and the Maritime Union of Australia.

H. Wallgren for Business SA.

Hearing details:

Adelaide, Brisbane, Melbourne and Sydney (video hearing)

7 November 2013.

 1   [2012] FWAFB 10738.

 2   PR532628, PR532630, PR532631, PR532632 and PR532633.

 3   United Voice wrote to the Commission on behalf of a number of parties including the Shop, Distributive and Allied Employees Association (SDA) and SA Unions. United Voice advised that the SDA had also had discussions with Business SA. This piece of correspondence is published on the Commission’s website: http://www.fwc.gov.au/documents/awardmod/review/AM2012355_corr_UV_220813.pdf.

 4   [2013] FWCFB 6916.

 5   The RCA initially also raised other issues however these go to the substance of the part-day public holidays rather than the interim provisions.

 6   Subclause (g) in those modern awards varied by Determinations PR532630 and PR532631 and subclause (f) in those modern awards varied by Determination PR532628.

 7   Determination PR532630 issued 21 December 2012.

 8   ABI written submission, 4 October 2013.

 9   AiG originally raised this formulation during the proceedings conducted in December 2012.

 10   PR543815

 11   PR544262.

 12   [2012] FWAFB 10738.

 13   Ibid at par [12].

 14   PR544519.

 15   S.165 of the Act.

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