| [2017] FWC 856 |
| 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, 10 FEBRUARY 2017 |
4 yearly review of modern awards – public holidays common issue
[1] A Statement in this matter was issued on 30 November 2016 1 attaching a summary of outstanding claims in relation to Public holidays. Parties were directed to confirm that the summary was accurate. Submissions were received from the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” (the AMWU), the Australian Hotels Association (AHA) and the Health Services Union of Australia (HSU).
[2] While confirming that the substance of the summary is correct, the AMWU took the opportunity to make a minor amendment to their claim 2. The HSU also made an amendment to their claim and are now only pursuing their claim to provide public holiday rates to employees who work on the public holiday itself, as opposed to the substitute day.3 The AHA confirmed the summary is correct with respect to their claim to vary the part-day public holidays provision.4 The AHA’s award-specific claim will be dealt with after the Part-day public holidays schedule has been reviewed more generally.5
[3] An additional claim made by Clubs Australia Industrial that was initially part of the Penalty rates case in AM2014/305 will also be dealt with by the Public Holidays Full Bench. Attachment A to this Statement is an updated summary of the public holiday claims.
[4] In accordance with the Directions issued on 27 April 2016, submissions in reply are due by 15 March 2017 with a mention listed for 9 am on Wednesday 22 March 2017, in Melbourne before Vice President Hatcher. Any requests for video links are to be directed to chambers.hatcher.vp@fwc.gov.au
PRESIDENT
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. Reply submissions are due by Wednesday 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. 6 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.7
4. Clubs Australia Industrial outlined they would be seeking changes to the public holidays clause in the Registered and Licensed Clubs Award 2010. 8 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. The following claim made by Clubs Australia Industrial as part of their submission to the Penalty rates case in AM2014/305 9 has been referred to the Public Holidays Full Bench. Their claim seeks to amend clause 29.3(c) of the Registered and Licensed Clubs Award 2010 as marked below:
“(c) An employee other than a casual working on Christmas Day when it such day falls on a weekend, and is not prescribed as a public holiday as defined in this award, will be paid an additional loading of 50% of their ordinary time rate applicable ordinary hourly rate for the hours worked on that day and will also be entitled to the benefit of a substitute day.”
6. Proposed variations relating to the public holiday provisions in various modern awards have been filed by the Shop, Distributive and Allied Employees Association (SDA), the Australian Manufacturing Workers’ Union (AMWU), the Health Services Union of Australia (HSU) and the Australian Nursing and Midwifery Federation (ANMF) 10 . There are two broad types of proposals: the non-working day claims and the weekend public holidays claim.
The Shop, Distributive and Allied Employees Association (SDA) filed a submission 11 seeking to vary seven awards12 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.”
(i) AMWU claim (Christmas Day only): the AMWU filed a submission 13 seeking to vary four awards14 with respect to Christmas Day entitlements when 25 December falls on a weekend. The variation sought is:
“44.2 When Christmas Day 25 December falls on a weekend and is substituted for another day:
(a) an employee who works on Christmas Day 25 December will receive payment for that work as if it were a public holiday; and
(b) Continuous shiftworkers will receive double time and half.
Note: s.115(2) of the Act confers Public Holiday status on the substitute day, which should continue to be treated as a public holiday.”
(ii) HSU claim: the HSU seeks to vary six 15 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.” 16
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2 AMWU submission, 14 December 2016
3 HSU submission, 19 January 2017
4 AHA submission, 15 December 2016
5 [2015] FWC 7248 at [7]
7 See Correspondence, 13 February 2015; see also AHA submission, 15 December 2016
8 See Correspondence, 12 February 2015
9 Ibid
10 The ANMF have withdrawn their claim – see Correspondence, 10 October 2016
11 See Submission, 10 October 2016
12 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
13 See Submission, 20 October 2016; see also AMWU submission, 14 December 2016
14 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
15 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.
16 See Outline of Submissions, 13 February 2015; see also HSU correspondence, 16 December 2016