| [2016] FWC 8606 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards—Public holidays
(AM2014/301)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 30 NOVEMBER 2016 |
4 yearly review of modern awards – public holidays common issue
[1] A Statement and Directions in this matter were issued on 27 April 2016 1 calling for comprehensive written submissions and witness statements or documentary material to be filed by 10 October 2016. Two submissions2 have been received in compliance with these directions.
[2] Attachment 1 to this Statement is a summary of the public holiday claims. At this stage, only item 7(a)(i) and 7(b)(i) of the summary are being pressed. Parties are asked to comment on whether the summary accurately reflects the current claims. Any comments are to be sent directly to amod@fwc.gov.au no later than 4.00 pm Wednesday 14 December 2016.
PRESIDENT
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1. Proposals relating to Public Holidays have been separated into three categories:
● Part-day public holidays
● Employer claims
● Union claims
2. Directions were issued on 27 April 2016. Two submissions have been received in compliance with the directions. Reply submissions are due 15 March 2017.
3. The interim schedule in modern awards regarding part-day public holidays has been varied to cover 2016 part-day public holidays. 3 The part-day public holidays aspect of this common issue is to be determined after other public holiday common issues have been determined in 2017. The Australian Hotels Association (AHA) are proposing to insert certain provisions from the part-day public holidays schedule of the Hospitality Industry Award 2010 into the body of the award and delete the schedule.4
4. No submissions have been received from employer groups in accordance with the 27 April 2016 Directions. Clubs Australia Industrial outlined they would be seeking changes to the public holidays clause in the Registered and Licensed Clubs Award 2010. 5 Their claim specifically seeks:
“X.1 that the days which are to be regarded as public holidays for the purposes of the Award be defined by the Award;
X.2 subject to paragraph X.3 below, that employees only be entitled to one public holiday in respect of each celebration (either the day itself or any day substituted for the day itself); and
X.3 that employees be entitled to be paid for absences on a public holiday only if they would have ordinarily worked on that day (and not otherwise) by the deletion of clause 34.3(a) and (b) of the Award.”
5. No further material has been received from Clubs Australia Industrial.
6. Proposed variations relating to the public holiday provisions in various modern awards have been filed by the SDA, the Australian Manufacturing Workers’ Union (AMWU), the Health Services Union of Australia (HSU) and the Australian Nursing and Midwifery Federation (ANMF). There are two broad types of proposals: the non-working day claims and the weekend public holidays claim.
(i) SDA claim: the Shop, Distributive and Allied Employees Association (SDA) filed a submission 6 seeking to vary seven awards7 to rectify an anomaly relating to public holidays for workers with non-standard work arrangements. The SDA propose the following subclause be inserted into the awards:
“This subclause applies to full-time employees, and to part-time employees who work an average of five days per week.
If a public holiday or a part-day public holiday falls on a day an employee is not rostered to work they shall be entitled to receive by mutual agreement:
(a) another day or part-day off in lieu; or
(b) an equivalent day or part-day’s pay; or
(c) one extra day or part-day added to his or her annual leave.
This subclause shall not apply to public holidays falling on a Saturday or Sunday (except where they are substituted to another day) nor to part-day public holidays of less than eleven hours.”
(ii) ANMF claim: the ANMF have withdrawn their claim. 8
(i) AMWU claim (Christmas Day only): the AMWU filed a submission 9 seeking to vary four awards10 with respect to Christmas Day entitlements when 25 December falls on a weekend. The variation sought is:
“44.2 When Christmas Day 25 December is substituted for another day
(a) Where Christmas Day 25 December falls on a weekend and is substituted for another day, an employee who works on Christmas Day 25 December will receive payment for that work as if it were a public holiday.
(b) Continuous shiftworkers will receive double time and half for work on Christmas Day 25 December where it falls on a weekend and is substituted for another day. The substitute day will continue to be treated as a public holiday.”
(ii) HSU claim: the HSU seek to vary six 11 awards. The proposed draft clause is as follows:
“X.1 Where any public holiday falls on a Saturday or a Sunday and the public holiday is substituted for another day, an employee working on the substituted day shall receive a loading of [150%] of the employee’s ordinary rate for the hours worked on the public holiday.
X.2 Where any public holiday falls on a Saturday or a Sunday and the public holiday is substituted for another day, an employee working on the substituted day shall receive a loading of [50%] of the employee’s ordinary rate for the hours worked on the substituted day.” 12
No further material has been received from the HSU.
2 See Shop, Distributive and Allied Employees’ Association submission dated 10 October 2016 and Australian Manufacturing Workers’ Union submission dated 20 October 2016.
4 See Correspondence, 13 February 2015
5 See Correspondence, 12 February 2015
6 See Submission, 10 October 2016
7 General Retail Award 2010; Hair and Beauty Industry Award 2010; Fast Food Industry Award 2010; Pharmacy Industry Award 2010; Mannequins and Models Award 2010; Storage Services and Wholesale Award 2010; Vehicle Manufacturing, Repair, Services and Retail Award 2010
8 See Correspondence, 10 October 2016
9 See Submission, 20 October 2016
10 Manufacturing and Associated Industries and Occupations Award 2010; Food, Beverage and Tobacco Manufacturing Award 2010; Graphic Arts, Printing and Publishing Award 2010; Vehicle, Manufacturing, Repair, Services and Retail Award 2010
11 Aboriginal Community Controlled Health Services Award 2010; Aged Care Award 2010; Ambulance and Patient Transport Award 2010; Health Professional and Support Services Award 2010; Nurses Award 2010; Social, Community, Home Care and Disability Services Industry Award 2010.
12 See Outline of Submissions, 13 February 2015