[2015] FWC 3317


Fair Work Act 2009

s.156 - 4 yearly review of modern awards

s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error.

4 yearly review of modern awards—Public holidays

Part-day Public Holiday provisions in modern awards



Application to vary modern awards in relation to part-day public holiday provisions.

[1] The background to this matter is set out in the most recent Decision 1 issued by the Full Bench on 12 November 2014 regarding part-day public holiday provisions in various modern awards.

[2] In brief, most of the Commission’s modern awards were varied to include an additional schedule dealing with part-day public holidays, originally in 2012, and again in 2013 and 2014. 2 There are a number of different versions of the schedule but each is directed at confirming appropriate arrangements for certain part-day public holidays. On each occasion, the various schedules were specified to operate on an interim basis for the relevant year.

[3] The issue of part-day public holidays has also arisen in the context of the four-yearly review of modern awards and public holiday provisions have been identified as a common issue. 3 In that regard, there are various proposals to make the present part-day pubic holiday schedules a permanent part of the relevant modern awards and other proposals to significantly amend or remove the provisions as part of a more comprehensive review of public holiday provisions.

[4] It has become clear that the review proceedings dealing with public holidays will not be completed ahead of the part-day public holidays that will take place in South Australia in December 2015. Given that the present provisions operate only in respect of 2014, some further amendment to the respective schedules must be considered if they are to operate for the 2015 part-day public holidays to which they are directed.

[5] The President recently requested 4 that I convene a conference of interested parties in order to consider how this circumstance should be dealt with by the Commission.

[6] I convened a conference on 13 May 2015 and have now heard the positions of many of the organisations that have participated in previous proceedings concerning these provisions in recent years.

[7] All of the parties appearing at the conference (as listed below) supported, or did not oppose, the continuation of the present interim arrangements to cover the Christmas and New Year part-day public holidays that will take place in South Australia later this year.

[8] The joint position would be best addressed by the Full Bench issuing a Determination in the form issued in 2014 5 but varied so as to amend the references to “2014” in each of the part-day public holiday schedules to cite “2015” in lieu thereof. If undertaken in the near future, this would provide certainty for relevant parties well ahead of the upcoming part-day public holidays.

[9] I recommend that the Full Bench issue a draft Determination as outlined above, and subject to any objections, consider making the determination on the papers without conducting a further hearing on the matter.


E Van Der Linden, with R Cairney, for the South Australian Chamber of Commerce and Industry, trading as Business SA.

T E Evans for the Australian Hotels Association.

H Wallgren for the SA Wine Industry Association.

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

L Dooley for the Construction, Forestry, Mining and Energy Union.

M Sullivan for United Voice and SA Unions.

M Chan for the Australian Business Industrial and NSW Business Chamber.

R Bhatt for the Australian Industry Group.

C Brehas for the National Retail Association.

P Coswell for Restaurant & Catering Industrial.

Conference details:


Adelaide with video links to Sydney and Melbourne

13 May.

 1   [2014] FWCFB 7380.

 2   See for example PR544262, issued 7 November 2013.

 3   [2015] FWC 1484.

 4   [2015] FWC 1921 at [65].

 5   PR557581, issued on 12 November 2014 and PR558851, issued 10 December 2014.

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