| [2018] FWC 4713 |
| FAIR WORK COMMISSION |
REPORT TO THE FULL BENCH |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
PART-DAY PUBLIC HOLIDAYS
(AM2014/301)
COMMISSIONER HAMPTON |
ADELAIDE, 23 AUGUST 2018 |
Report to the Full Bench – 4 yearly review of modern awards – common issue – public holidays – part-day public holidays.
[1] This report concerns the provisions that are currently found in most modern awards dealing with certain part-day public holidays. In particular, whether those provisions should be retained, and if so, in what form.
[2] The background and history of these provisions is set out in various decisions of the Commission. It is sufficient for present purposes to note that most of the Commission’s modern awards were varied to include an additional Schedule dealing with certain part-day public holidays (Christmas Eve and New Year’s Eve) 1, originally in 2012, and again in each subsequent year. There are a number of different versions of the Schedule but each is directed at confirming appropriate arrangements for the relevant part-day public holidays. On each occasion since 2012, the various Schedules were specified to operate on an interim basis for the relevant year.2
[3] As part of the 4 yearly review of modern awards 3 (the Review), the Commission is considering these provisions and I have been requested by the Full Bench that is reviewing the public holiday provisions more generally to consult further with interested parties and to produce a report to facilitate a determination of the issues.
[4] I convened a Conference on 10 August 2018 and this Report is being issued having regard to the positions advanced at that conference and by interested parties more generally.
[5] Statements were issued by the Full Bench on 15 June 20184 and 18 July 20185 concerning two broad options open to the Commission to finalise the various part-day public holiday provisions. Those options were as follows:
• Make each of the existing Schedules ongoing by deleting reference to any particular year. This would involve a determination(s) being issued to vary each of the relevant modern awards. If this option were adopted, the Full Bench may also permit any interested party to make a specific contrary application which would be considered and dealt with in advance of the part-day public holidays scheduled for later this year (Option 1); or
• Convene a conference of all interested organisations with a view to exploring whether separate Schedules (or particular provisions within the awards concerned) are actually required across the modern awards, and if so, the appropriate provisions (Option 2).
[6] As a result of submissions from the parties, the Full Bench determined as follows:
“[5] In light of the various initiatives undertaken by the Commission to remove duplication from modern award as part of the 4-yearly review, we consider that the potential to rationalise the number or extent of part-day public holiday schedules should be further assessed. We are also mindful of the need to provide some ongoing certainty to parties around this issue.
[6] To that end, Commissioner Hampton will convene a conference of interested parties to explore this approach on behalf of the Full Bench.
[7] In the circumstances, we would favourably consider any agreed variations to simplify the relevant provisions of the relevant modern awards. In the absence of agreement, it is likely that the Full Bench will consider applying Option 1 so as to ensure certainty for all parties whilst any ongoing consideration of the provisions is undertaken.”6
[7] In the lead up to the Conference the Commission issued a Background Paper 7 setting out the history of the matter, the issues that were considered in reaching the original 2012 variations to the modern awards, and the various proposals that had been made in the context of the current Review.
[8] Given the terms of the present provisions, their application only to certain part-day public holidays, and the year by year interim nature of the present provisions, the principal issue is as follows:
• Whether there is a need for particular provisions in modern awards dealing with part-day public holidays given the terms of the Fair Work Act 2009 and the other terms of those awards?
[9] No party contended that there was not a need for some provisions in this regard. Given the various decisions of the Commission, which have determined and subsequently continued the Schedules on the basis that they were required to remove ambiguity and uncertainty, this Report will proceed on the presumption that the answer to this question is ‘Yes’.
[10] Given that position, the following consequential issues arise:
• Should the present Schedules simply be made ongoing and remain (largely) in their present terms?
• Are all the provisions contained in the present Schedules necessary and appropriate?
• Should the relevant provisions be set out in Schedules or within the body of the modern awards?
• Should the relevant provisions be applicable to all part-day public holidays?
[11] I do not intend to repeat the detail of the various submissions for present purposes. 8 The following summarises the substance of those positions.
[12] A range of interested parties proposed that the existing Schedules be retained largely in their current form, but made ongoing. These parties included the Australian Hotels Association (AHA), the Australian Industry Group (AI Group), SA Wine Industry Association, National Road Transport Association and Live Performance Australia (LPA). The Construction, Forestry, Maritime, Mining and Energy Union, Construction and General Division (CFMMEU), largely took the same approach. However, it contended that the Schedules in the modern awards where it had a direct interest should apply to part-day and half-day public holidays 9 more generally and be further revised to some extent.10
[13] The AI Group also contended that the Commission should avoid an award by award analysis of this matter, given that there had been no concerns or difficulties with the present provision identified during the years of their operation. Further, it contended that an award by award consideration would require that the other terms of the modern awards concerned that impact upon the part-day public holiday provisions (such as the form of engagement, hours of work, minimum periods of engagement and annualised salary arrangements) would all need to be finalised to enable a proper assessment to be undertaken. This latter contention was generally acknowledged by those attending the Conference.
[14] SA Unions, the Shop, Distributive and Allied Employees Association (SDA) and United Voice have proposed that each award be reviewed on the basis that the existing Schedules unnecessarily replicate rights and entitlements under the Act and could be deleted, with any operative provisions placed into the body of the relevant modern awards. The SDA and United Voice also provided an analysis11 of the replicated provisions and the operative clauses that could be inserted into the body of the General Retail Industry Award 2010 and the Aged Care Award 2010, respectively. 12
[15] LPA also raised 13 a broader issue about the proper application of s.114(1) of the Act in the context of the modern awards operating in its sector. Section 114(1) provides as follows:
“Entitlement to be absent from employment on public holiday
Employee entitled to be absent on public holiday
(1) An employee is entitled to be absent from his or her employment on a day or part‑day that is a public holiday in the place where the employee is based for work purposes.
… …”
[16] In effect, the LPA is seeking clarification about how this provision applies when employees are working in different locations. Whilst this may impact upon part-day public holidays, it is a matter concerning the operation of public holidays and the Act more generally. As a result, I do not consider that it should be dealt with as part of this present exercise.
[17] I will however draw the LPA submission to the attention of the other Members of the Full Bench.
[18] The following represent my preliminary views.
[19] There is no consensus at this point in time about the appropriate course of action. There is, in my view, some merit in each of the broad competing positions advanced in relation to this matter, and in particular that:
• There have been no issues identified with the existing provisions over the time of their operation;
• If there are specific part-day public holiday provisions, some or most of the same issues that are addressed in those provisions would arise in relation to other part-day (half-day) public holidays; and
• As part of the current Review, an approach has been taken that modern award provisions would not generally replicate the provisions of the Act itself.
[20] It should also not be assumed that the same approach might ultimately be required in the case of each modern award.
[21] However, there would appear to be two considerations that strongly influence the desirable short-term approach. Namely, that the present Schedules have some work to do and the Christmas Eve and New Year’s Eve Public Holidays are now only a few months away. In addition, if there is to be any award by award consideration of whether the Schedules are required in their present form, this will take some time and will require that all of the other terms of the modern awards that bear upon this issue have been finalised. This finalisation will not take place until the (other) terms of the modern awards are resolved as part of the 4 yearly review.
[22] As a result, it would appear that the appropriate measure would be to consider making each of the present Schedules ongoing, but noting that they will be further considered as part of the finalisation of the present 4 yearly review. Further, applications to vary specific awards might also be made by parties with a relevant interest and considered by the Commission at an appropriate time. This approach would remove the uncertainty associated with the year by year approach, recognise that for some awards there is a prospect that the present Schedules will be maintained, whilst also allowing for the fact that alternative approaches might ultimately be taken. Those alternatives might include extending the provisions to all part-day public holidays, removing clauses that are not necessary and/or placing the relevant terms within the body of the modern awards.
[23] In terms of the framework of the Act, such an approach would appear to be consistent with the various decisions of the Commission which have found that the existing Schedules were necessary and with the approach adopted by the Commission to the assessment of the modern awards objective 14 as part of this Review.15 Further, this approach would allow for the fact that some changes to the existing modern awards might be self-evident and others might require probative evidence so as to demonstrate a need to vary the award to provide for consistency with that objective.16 Further, this would recognise that the Review involves each modern award as a whole17 and there is some evident practical benefit in allowing this matter to be fully reviewed after the (other) substantive provisions of the modern awards have been finalised, including by having regard to the Commission’s approach to adopt plain language principles.
[24] This approach would mean, in effect, that the reference to the particular year in the terms of each Schedule would be removed. Further, the final clause in each award Schedule would be revised to note that the Schedule may be further reviewed as part of the 4 yearly review of modern awards, in lieu of the present reference to being an “interim” provision. Any decision issued by the Full Bench could also expressly recognise the capacity for parties to make an application to vary one or more modern awards in relation to the part-day public holiday provisions as part of this Review.
[25] Given the history and nature of the matter, I suggest that the Full Bench publish this Report and invite written submissions from interested parties.
[26] In the absence of parties seeking a hearing, the Full Bench might then determine the matter on the basis of this Report and those submissions.
COMMISSIONER
Appearances:
S Hills of the South Australian Wine Industry Association.
S Legoe of the Australian Hotels Association.
D Hamilton of Live Performance Australia.
S Maxwell of the Construction, Forestry, Maritime, Mining and Energy Union, Construction and General Division.
R Bhatt of the Australian Industry Group.
D Johns of the Australian Road Transport Association.
Hearing details:
2018
Adelaide with video links to Melbourne, Sydney and Canberra
10 August 2018.
Printed by authority of the Commonwealth Government Printer
<PR609857>
1 These holidays operate in South Australia and more recently in the Northern Territory.
2 The variations for the 2017 year were dealt with in [2017] FWCFB 5893.
3 Conducted under s.156 of the Act.
7 Issued on 19 July 2018.
8 Written submissions and the full transcript of the Conference are available on the Commission’s website.
9 There are various part-day (half day) public holidays in New South Wales and Tasmania.
10 The substance of the CFMMEU proposal was not considered at any length in the conference and an opportunity for interested parties to comment on the draft would be appropriate at the proper stage of consideration.
11 Appended to the submission of SA Unions dated 6 July 2018.
12 These parties did not attend the Conference, however their proposals were canvassed in the Discussion Paper and considered more generally.
13 LPA written submission dated 8 August 2018.
14 Section 134 of the Act.
15 See 4 Yearly Review of Modern Award – Preliminary Jurisdictional Issues Decision [2014] FWCFB 1788 at [19] to [27] and 4 Yearly Review of Modern Awards – Public Holidays [2018] FWCFB 4 at [14] to [18].
16 4 Yearly Review of Modern Award – Preliminary Jurisdictional Issues Decision [2014] FWCFB 1788 at [23].
17 4 Yearly Review of Modern Awards – Public Holidays [2018] FWCFB 4 at [15].