STATEMENT

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards – Penalty Rates
(AM2014/305)

4 yearly review of modern awards – penalty rates – hospitality and retail sectors – public holiday provisions – ancillary claims.

[1] On 23 February 2017 the Full Bench issued a decision 1 (the Penalty Rates decision) in relation to the penalty rate provisions in a number of awards in the hospitality and retail sectors. Chapter 9 of the Penalty Rates decision dealt with various claims to vary public holiday provisions and outlined proposed reductions of the penalty rates in some of the relevant modern awards.

[2] The Penalty Rates decision did not deal with a small number of ancillary claims associated with public holiday provisions and indicated as follows:

“We acknowledge that a number of ancillary claims were advanced in respect of the public holiday terms of the Hospitality and Retail Awards. The argument in respect of these claims was very limited and we do not propose to determine those matters in this decision. A conference will be convened in the coming weeks, to ascertain whether any of the claims we have not dealt with are still being pressed. Any outstanding claims may be referred to the Public Holidays Full Bench.” 2

[3] A list of the relevant ancillary claims that were before the Full Bench, but not yet dealt with, are set out in Attachment A.

[4] A conference will be conducted by the Commission to ascertain the status of these claims, and if they are to be pressed, the likely extent of submissions and evidence that is to be provided by all parties with an interest in the relevant modern awards. This will assist with the programing of the matters as part of the Full Bench proceedings dealing with the issue of public holidays more generally. 3

[5] The conference will be conducted on 21 April 2017 at 9.30 am (AEST) with video links to Melbourne and Sydney.

[6] Those parties who have made the claims set out in Attachment A are to advise the Commission by Wednesday 19 April 2017 whether they intend to press their claims.

[7] The conference will also canvass a related issue that has arisen from the decision to vary public holiday penalty rates in the Hospitality Industry (General) Award 2010 and the Restaurant Industry Award 2010. Draft Determinations 4 giving effect to the variations in these modern awards have been issued for comment by the parties. There is a particular feature of those Draft Determinations about which the Commission is seeking specific views.

[8] Extracts of the relevant provisions from the existing awards, with the revised penalty rates noted, are contained in Attachment B to this Statement. Both of the modern awards concerned presently contain the capacity, by agreement, for public holidays to be worked at a lower rate (an additional 50%) than the prescribed penalty rate with equivalent paid time added to annual leave or a day off. On face value, the combined “value” of the optional arrangement would appear to be consistent with the existing full and part-time penalty payments.

[9] The Commission will explore the views of parties about these provisions in light of the changes to be made as a result of the Penalty Rates decision.

[10] Parties making written responses to this Statement are to do so by emailing amod@fwc.gov.au. Any advice provided in response to this Statement will be made available on the Commission’s website 5 in advance of the conference.

COMMISSIONER

 1   [2017] FWCFB 1001.

 2   Ibid at [1981].

 3   https://www.fwc.gov.au/awards-agreements/awards/modern-award-reviews/4-yearly-review/common-issues/am2014301-public

 4   https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/penalty-rates-case/determinations-orders

 5   https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/penalty-rates-case/submissions

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Attachment A — List of ancillary public holiday claims

Australian Business Industrial and the New South Wales Business Chamber (ABI)

In a submission dated 13 Feb 2015 ABI filed draft determinations seeking changes to the Restaurant Industry Award 2010 as to payment on public holidays including Time Off in Lieu (TOIL) arrangements.

Australian Hotels Association and the Accommodation Association of Australia (AHA)

In a submission dated 13 Feb 2015 the AHA filed a draft determination seeking changes to the Hospitality Industry (General) Award 2010, dealing with the two tiered claim (which has been dealt with by the Full Bench in the Penalty rates decision), TOIL arrangements and substituted days (Christmas Day only).

Notes:

1. In general terms, these claims were not addressed in the final submissions of any of the parties to the Penalty Rates Full Bench but were not withdrawn and their status is unclear.

• Proposals by the Hair & Beauty Australia Industry Association to vary the Hair and Beauty Industry Award 2010 were not ultimately advanced in the Full Bench proceedings.



• The Restaurant & Catering Industrial claims concerning the Restaurant Industry Award 2010 and the Fast Food Industry Award 2010 were withdrawn - draft determination filed on 11 May 2016

Attachment B — Extracts of existing award provisions

Note: The revised penalty payments have been included for reference

Hospitality Industry (General) Award 2010 – clause 32

32. Penalty rates

32.1 An employee performing work on the following days will be paid the following percentage of the minimum wage rate in clause 20—Minimum wages for the relevant classification:

	Monday to Friday %	Saturday %	Sunday %	Public holiday %
Full-time and part-time	100	125	175	250 225
Casual (inclusive of the 25% casual loading)	125	150	175	275 250

32.2 Public holidays

(a) An employee other than a casual working on a public holiday will be paid for a minimum of four hours’ work. A casual employee working on a public holiday will be paid for a minimum of two hours’ work.

(b) Employees who work on a prescribed holiday may, by agreement, perform such work at their applicable ordinary hourly rate plus 50% additional loading rather than the penalty rate prescribed in clause 32.1, provided that equivalent paid time is added to the employee’s annual leave or one day instead of such public holiday will be allowed to the employee during the week in which such holiday falls. Provided that such holiday may be allowed to the employee within 28 days of such holiday falling due.

(c) An employee other than a casual working on Christmas Day when it falls on a weekend, and is not prescribed as a public holiday under the NES will be paid an additional loading of 50% of their applicable ordinary hourly rate for the hours worked on that day and will also be entitled to the benefit of a substitute day.

…”

Restaurant Industry Award 2010 – clause 34

34.1 Penalty rates for work on weekends and public holidays

An employee working ordinary time hours on the following days will be paid the following percentage of the minimum wage in clause 20—Minimum wages for the relevant classification:

…

34.4 Additional provisions for work on public holidays

(a) An employee other than a casual working on a public holiday must be paid for a minimum of four hours’ work.

(b) A casual employee working on a public holiday must be paid for a minimum of two hours’ work.

(c) Employees who work on a prescribed holiday may, by agreement, perform such work at a rate of 150% of the relevant minimum wage in clause 20—Minimum wages, rather than the penalty rate prescribed in clause 34.1, provided that equivalent paid time is added to the employee’s annual leave or one day instead of such public holiday will be allowed to the employee during the week in which such holiday falls. Provided further that such holiday may be allowed to the employee within 28 days of such holiday falling due.

(d) An employee other than a casual working on Christmas Day when it falls on a weekend and it is not a prescribed public holiday must be paid an additional loading of 50% of their ordinary time rate for the hours worked on that day and will also be entitled to the benefit of a substitute day.”