[2019] FWCFB 8491
FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.160—Variation of modern award to remove ambiguity or uncertainty or correct error

Section 160—Variation of modern award to remove ambiguity or uncertainty or correct error
(AM2019/21 & AM2019/22)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER HAMPTON

MELBOURNE, 17 DECEMBER 2019

Part-day public holidays.

[1] On 27 November 2019 the Queensland parliament passed the Holidays and Other Legislation Amendment Bill 2019 (QLD) which declares a part-day public holiday in the state of Queensland from 6pm to midnight on Christmas Eve (24 December) and will take effect from 2019. 1 The stated policy objective of the new part-day public holiday is as follows:

‘Declaring a public holiday will recognise that the personal, social, religious and cultural significance of Christmas celebrations commence on Christmas Eve and so recognise the importance of that evening to spend time with family and friends and prepare for Christmas Day. Declaring a public holiday from 6pm will also ensure that workers have the right to reasonably refuse to work, or be fairly compensated should they work, after 6pm on Christmas Eve.’ 2

[2] Of the 122 modern awards, 113 currently contain a part-day public holiday schedule (see Appendix A). The are 5 different versions 3 of the part-day public holiday schedule but each of them refer to a part-day public holiday ‘declared or prescribed between 7.00 pm and midnight on Christmas Eve (24 December in each year) or New Year’s Eve (31 December in each year)’.

[3] Part-day public holiday schedules were initially considered during the 2012 Transitional Review proceedings (AM2012/355) prompted by the Statutes Amendment (Shop Trading and Holidays) Act 2012 (SA) which established two additional part-day public holidays to operate throughout South Australia on Christmas Eve (24 December) and New Year’s Eve
(31 December), between the hours 7.00 pm and midnight. 4 In those proceedings the Full Bench observed:

‘[11] There are a number of issues that arise through the interaction of the part-day public holidays and the common public holiday provisions found in many modern awards. These include the following:

(i) Annualised salary arrangements: Some modern awards contain annualised salary arrangements. These provide that if an employee on an annualised salary works on a public holiday, that employee would be entitled to a full day off in lieu or a day added to their annual leave entitlement. The application of that concept, to part-day public holidays of the kind being considered here, is not beyond doubt.

(ii) Rostered day off arrangements: Many modern awards provide a system of rostered days off (RDO). Some provide that if part of an employee's RDO falls on a public holiday they are entitled to 7.6 hours (or a day’s) pay, an extra day of annual leave or a substitute day off on an alternative week day. The application of these concepts, to part-day public holidays of the kind being considered here, is problematic.

(iii) Annual close down arrangements: Some modern awards contain provisions concerning annual close-downs. They provide in effect that an employee is not considered to be on annual leave if a day falling in that period is a public holiday (which would include a part-day public holiday). This clearly operates in the context of s.89(1) of the Act as part of the NES. How this concept operates in the case of a part-day public holiday that falls outside of the ordinary hours of some employees is uncertain.

(iv) Time off for work performed on a public holiday: Some modern awards directly provide a day of time off in lieu of any work performed on a public holiday. The application of these concepts, to part-day public holidays of the kind being considered here, is ambiguous.

(v) Minimum Engagement provisions: Most modern awards have minimum engagement provisions in relation to work on public holidays. Depending upon the precise terms of the awards in question and how they are applied, the minimum engagement provisions might relate specifically to work on the public holiday or alternatively, in relation to each (daily) engagement.

[12] We are satisfied that the proclamation of the part-day public holidays has given rise to a number of ambiguities and uncertainties in the provisions of the modern awards we propose to vary.’ 5

[4] The Full Bench went on to exercise the Commission’s power under s. 160 of the Act to insert part-day public holiday schedules into 113 awards. 6

[5] These schedules were again considered during the 4 yearly review of modern awards in AM2014/301 and were the subject of a number of statements and a conference on 10 August 2018. 7 A decision issued on 7 November 20188 varied the 113 affected awards part-day public holiday schedules to their current form.9

[6] In response to the part-day public holiday declared in Queensland, the Australian Hotels Association (AHA) has made an application to vary the Hospitality Industry (General) Award 2010 (Hospitality Award) pursuant to s 158 of the Fair Work Act 2009 (the Act).

[7] The AHA seeks a determination to vary Schedule H—Part-day Public Holidays, of the Hospitality Award so that it applies to, and provides the same terms and conditions to, part-day public holidays declared or prescribed between 6:00pm and midnight on Christmas Eve or New Years Eve. Their proposed amendment is as follows:

H.1 Where a part-day public holiday is declared or prescribed between 6.00pm and midnight, or 7.00pm and midnight, on Christmas Eve (24 December in each year) or New Year’s Eve (31 December in each year) the following will apply on Christmas Eve and New Year’s Eve and will override any provision in this award relating to public holidays to the extent of the inconsistency:

(a) All employees will have the right to refuse to work on the part-day public holiday if the request to work is not reasonable or the refusal is reasonable as provided for in the NES.

(b) Where a part-time or full-time employee is usually rostered to work ordinary hours on the declared or prescribed part-day public holiday between 7.00pm and midnight but as a result of exercising their right under the NES does not work, they will be paid their ordinary rate of pay for such hours not worked.

(c) Where a part-time or full-time employee is usually rostered to work ordinary hours on the declared or prescribed part-day public holiday between 7.00pm and midnight but as a result of being on annual leave does not work, they will be taken not to be on annual leave during the hours of the declared or prescribed part-day public holiday between those hours of 7.00pm and midnight that they would have usually been rostered to work, and will be paid their ordinary rate of pay for such hours.

(d) Where a part-time or full-time employee is usually rostered to work ordinary hours on the declared or prescribed part-day public holiday between 7.00pm and midnight, but as a result of having a rostered day off (RDO) provided under this award, does not work, the employee will be taken to be on a public holiday for such hours and paid their ordinary rate of pay for those hours.

(e) Excluding annualised salaried employees to whom clause A.1.1(f) applies, where an employee works any hours on the declared or prescribed part-day public holiday between 7.00pm and midnight they will be entitled to the appropriate public holiday penalty rate (if any) in this award for those hours worked.

(f) Where an employee is paid an annualised salary under the provisions of this award and is entitled under this award to time off in lieu or additional annual leave for work on a public holiday, they will be entitled to time off in lieu or pro-rata annual leave equivalent to the time worked on the declared or prescribed part-day public holiday between 7.00pm and midnight.

(g) An employee not rostered to work on the declared or prescribed part-day public holiday between 7.00pm and midnight, other than an employee who has exercised their right in accordance with clause A.1.1(a), will not be entitled to another day off, another day’s pay or another day of annual leave as a result of the part-day public holiday.

[8] In a Statement 10 issued on 3 December 2019 (the December 2019 Statement) we expressed the provisional view that the Hospitality Award should be varied in line with the AHA’s proposed amendment at [8] above. We also expressed the provisional view that, pursuant to the Commission’s power to vary a modern award on its own initiative in s 157(3)(a), the additional 112 awards with a part-day public holiday schedule should be varied in the same terms as submitted by the AHA for the Hospitality Award.

[9] As mentioned earlier, there are 5 different versions of the part-day public holiday schedule. In the December 2019 Statement we expressed the provisional view is that the variation of the 113 awards (including the Hospitality Award) in accordance with the marked-up schedules set out in Appendix B is necessary to meet the modern awards objective.

[10] The December 2019 Statement invited parties opposing the provisional views set out at [8] and [9] above to file submissions. This matter was heard on Monday 16 December 2019.

[11] The following parties filed submissions in response to the December 2019 Statement:

•  Ai Group on 11 December 2019;

•  United workers’ Union 12 December 2019

[12] Both submissions support our provisional views.

[13] On 11 December 2019, the Commission received correspondence from the Queensland Minister for Education and Industrial Relations relating to the matter before us.

[14] In referring to the existing part-day public holiday schedules the Minister says:

‘Those clause/schedules are considered to not be applicable to entitlements arising from Queensland’s part-day Christmas Eve public holiday which commences from 6:00pm.

In the absence of applicable arrangements in federal modern awards for employees rostered off work on a part-day public holiday as provided for in Queensland legislation, the alternative is to refer to award provisions relating to public holidays generally. Those provisions create an ambiguity (already recognised in Fair Work Australia's 2012 decision) in that they provide an entitlement to an extra day's pay rather than only the rostered hours on the part-day public holiday.

To remove this ambiguity and establish specific provisions governing entitlements on a part-day public holiday as provided for in Queensland, I wish to draw the Fair Work Commission's attention to this matter. The Fair Work Commission may consider it appropriate and effective to vary the clauses/schedules inserted in 2012 to encompass the recent Queensland amendments.

Given the urgency of this matter to the parties in Queensland, I respectfully request that the Fair Work Commission, using the powers vested in it pursuant to section 160 of the FW Act consider, on its own initiative, varying relevant modern awards prior to 24 December 2019 to remove the ambiguities relating to part-day public holidays. I believe this suggestion is consistent with the approach taken by the Fair Work Commission in its decision in 2012 and would provide clarity to both Queensland employers and employees.’

[15] Section 160 of the Fair Work Act 2009 (Cth) (the Act) provides that the Commission may act on its own initiative to vary one or more modern awards to remove ambiguity or uncertainty.

[16] In the December 2019 Statement we expressed the provisional view that the part-day public holiday schedules in modern awards should be varied pursuant to s.157. During the course of the hearing on 16 December 2019 we raised the issue of proceeding under s.160; no party opposed such a course.

[17] The determinations varying modern awards which we propose to make are made on our own initiative pursuant to s.160(2)(a).

[18] We are satisfied that the proclamation of the part-day public holidays has given rise to a number of ambiguities and uncertainties in the provisions of the modern awards we propose to vary. We will vary the 113 modern awards with part-day public holiday schedules in the manner set out in the December 2019 Statement to remove ambiguity and uncertainty.

[19] An issue arose during the hearing on 16 December 2019 regarding the operative date of the variation determinations.

[20] The general rule is that a determination that varies a modern award comes into operation on the day specified in the determination (s.165(1)) and the specified day must not be earlier than the day on which the determination is made (s.165(2)). Further, s.165(3) provides that the determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after the day the determination comes into operation.

[21] If determinations were made today then the practical effect of the application of the general rule would be that for some employees (such as those on fortnightly or monthly pay periods) the determinations would not operate prior to the 2019 part-day Christmas eve public holiday.

[22] Section 165(2) provides an exception to the general rule, it states:

The specified day must not be earlier than the day on which the determination is made, unless:

(a) the determination is made under section 160 (which deals with variation to remove ambiguities or correct errors); and

(b) the FWC is satisfied that there are exceptional circumstances that justify specifying an earlier day.

[23] In the present matter the determinations we propose to make are made under s.160; hence the condition in s.165(2)(a) is met.

[24] As we have mentioned, the practical effect of the general rule would be that for some employees the determinations would not operate prior to the 2019 part-day Christmas eve public holiday. Such an outcome is plainly undesirable. It is of benefit to employers and employees if the clarity provided by the amendments to the award safety net apply to employees generally; rather than operating to exclude some employees because of the timing of their pay period.

[25] The day specified in each of the determinations we make will be 18 November 2019 to ensure that the determinations are operative prior to the 2019 Christmas eve part-day public holiday. In the context of this matter we are satisfied that there are exceptional circumstances within the meaning of s.165(2)(b) that justify specifying an earlier day.

[26] The variation determinations giving effect to our decision will be published shortly.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR715317>

Appendix A—Awards with part-day public holidays schedules

Appendix B

Version 1:

‘This schedule operates in conjunction with award provisions dealing with public holidays.

X.1 Where a part-day public holiday is declared or prescribed between 6pm and midnight, or 7.00 pm and midnight on Christmas Eve (24 December in each year) or New Year’s Eve (31 December in each year) the following will apply on Christmas Eve and New Year’s Eve and will override any provision in this award relating to public holidays to the extent of the inconsistency:

(a) All employees will have the right to refuse to work on the part-day public holiday if the request to work is not reasonable or the refusal is reasonable as provided for in the NES.

(b) Where a part-time or full-time employee is usually rostered to work ordinary hours on the declared or prescribed part-day public holiday between 7.00 pm and midnight but as a result of exercising their right under the NES does not work, they will be paid their ordinary rate of pay for such hours not worked.

(c) Where a part-time or full-time employee is usually rostered to work ordinary hours on the declared or prescribed part-day public holiday between 7.00 pm and midnight but as a result of being on annual leave does not work, they will be taken not to be on annual leave during the hours of the declared or prescribed part-day public holiday between those hours of 7.00pm and midnight that they would have usually been rostered to work and will be paid their ordinary rate of pay for such hours.

(d) Where a part-time or full-time employee is usually rostered to work ordinary hours on the declared or prescribed part-day public holiday between 7.00 pm and midnight, but as a result of having a rostered day off (RDO) provided under this award, does not work, the employee will be taken to be on a public holiday for such hours and paid their ordinary rate of pay for those hours.

(e) Where an employee works any hours on the declared or prescribed part-day public holiday between 7.00 pm and midnight they will be entitled to the appropriate public holiday penalty rate (if any) in this award for those hours worked.

(f) An employee not rostered to work on the declared or prescribed part-day public holiday between 7.00 pm and midnight, other than an employee who has exercised their right in accordance with clause F.1(a), will not be entitled to another day off, another day’s pay or another day of annual leave as a result of the part-day public holiday.

(g) Nothing in this schedule affects the right of an employee and employer to agree to substitute public holidays.

X.2 An employer and employee may agree to substitute another part-day for a part-day that would otherwise be a part-day public holiday under the NES.

This schedule is not intended to detract from or supplement the NES.’

Version 1 is included in the following awards

Version 2:

‘This schedule operates where this award otherwise contains provisions dealing with public holidays that supplement the NES.

X.1 Where a part-day public holiday is declared or prescribed between 6pm and midnight, or 7.00 pm and midnight on Christmas Eve (24 December in each year) or New Year’s Eve (31 December in each year) the following will apply on Christmas Eve and New Year’s Eve and will override any provision in this award relating to public holidays to the extent of the inconsistency:

(a) All employees will have the right to refuse to work on the part-day public holiday if the request to work is not reasonable or the refusal is reasonable as provided for in the NES.

(b) Where a part-time or full-time employee is usually rostered to work ordinary hours on the declared or prescribed part-day public holiday between 7.00 pm and midnight but as a result of exercising their right under the NES does not work, they will be paid their ordinary rate of pay for such hours not worked.

(c) Where a part-time or full-time employee is usually rostered to work ordinary hours on the declared or prescribed part-day public holiday between 7.00 pm and midnight but as a result of being on annual leave does not work, they will be taken not to be on annual leave during the hours of the declared or prescribed part-day public holiday between those hours of 7.00 pm and midnight that they would have usually been rostered to work and will be paid their ordinary rate of pay for such hours.

(d) Where a part-time or full-time employee is usually rostered to work ordinary hours on the declared or prescribed part-day public holiday between 7.00 pm and midnight, but as a result of having a rostered day off (RDO) provided under this award, does not work, the employee will be taken to be on a public holiday for such hours and paid their ordinary rate of pay for those hours.

(e) Excluding annualised salaried employees to whom clause F.1(f) applies, where an employee works any hours on the declared or prescribed part-day public holiday between 7.00 pm and midnight they will be entitled to the appropriate public holiday penalty rate (if any) in this award for those hours worked.

(f) Where an employee is paid an annualised salary under the provisions of this award and is entitled under this award to time off in lieu or additional annual leave for work on a public holiday, they will be entitled to time off in lieu or pro-rata annual leave equivalent to the time worked on the declared or prescribed part-day public holiday between 7.00 pm and midnight.

(g) An employee not rostered to work on the declared or prescribed part-day public holiday between 7.00 pm and midnight, other than an employee who has exercised their right in accordance with clause F.1(a), will not be entitled to another day off, another day’s pay or another day of annual leave as a result of the part-day public holiday.

X.2 An employer and employee may agree to substitute another part-day for a part-day that would otherwise be a part-day public holiday under the NES.

This schedule is not intended to detract from or supplement the NES.’

Version 2 is included in the following awards:

Version 3:

‘This schedule operates in conjunction with award provisions dealing with public holidays.

X.1 Where a part-day public holiday is declared or prescribed between 6pm and midnight, or 7.00 pm and midnight on Christmas Eve (24 December in each year) or New Year’s Eve (31 December in each year) the following will apply on Christmas Eve and New Year’s Eve and will override any provision in this award relating to public holidays to the extent of the inconsistency:

(a) All employees will have the right to refuse to work on the part-day public holiday if the request to work is not reasonable or the refusal is reasonable as provided for in the NES.

(b) Where a part-time or full-time employee is usually rostered to work ordinary hours on the declared or prescribed part-day public holiday between 7.00 pm and midnight but as a result of exercising their right under the NES does not work, they will be paid their ordinary rate of pay for such hours not worked.

(c) Where a part-time or full-time employee is usually rostered to work ordinary hours on the declared or prescribed part-day public holiday between 7.00 pm and midnight but as a result of being on annual leave does not work, they will be taken not to be on annual leave during the hours of the declared or prescribed part-day public holiday between those hours of 7.00 pm and midnight that they would have usually been rostered to work and will be paid their ordinary rate of pay for such hours.

(d) Where a part-time or full-time employee is usually rostered to work ordinary hours on the declared or prescribed part-day public holiday between 7.00 pm and midnight, but as a result of having a rostered day off (RDO) provided under this award, does not work, the employee will be taken to be on a public holiday for such hours and paid their ordinary rate of pay for those hours.

(e) Excluding annualised salaried employees to whom clause F.1(f) applies, where an employee works any hours on the declared or prescribed part-day public holiday between 7.00 pm and midnight they will be entitled to the appropriate public holiday penalty rate (if any) in this award for those hours worked.

(f) Where an employee is paid an annualised salary under the provisions of this award and is entitled under this award to time off in lieu or additional annual leave for work on a public holiday, they will be entitled to time off in lieu or pro-rata annual leave equivalent to the time worked on the declared or prescribed part-day public holiday between 7.00 pm and midnight.

(g) An employee not rostered to work on the declared or prescribed part-day public holiday between 7.00 pm and midnight, other than an employee who has exercised their right in accordance with clause F.1(a), will not be entitled to another day off, another day’s pay or another day of annual leave as a result of the part-day public holiday.

(h) Nothing in this schedule affects the right of an employee and employer to agree to substitute public holidays.

X.2 An employer and employee may agree to substitute another part-day for a part-day that would otherwise be a part-day public holiday under the NES.

This schedule is not intended to detract from or supplement the NES.’

Version 3 is included in the following awards:

Version 4:

‘This schedule operates where this award otherwise contains provisions dealing with public holidays that supplement the NES.

X.1 Where a part-day public holiday is declared or prescribed between 6pm and midnight, or 7.00 pm and midnight on Christmas Eve (24 December in each year) or New Year’s Eve (31 December in each year) the following will apply on Christmas Eve and New Year’s Eve and will override any provision in this award relating to public holidays to the extent of the inconsistency:

(a) All employees will have the right to refuse to work on the part-day public holiday if the request to work is not reasonable or the refusal is reasonable as provided for in the NES.

(b) Where a part-time or full-time employee is usually rostered to work ordinary hours on the declared or prescribed part-day public holiday between 7.00 pm and midnight but as a result of exercising their right under the NES does not work, they will be paid their ordinary rate of pay for such hours not worked.

(c) Where a part-time or full-time employee is usually rostered to work ordinary hours on the declared or prescribed part-day public holiday between 7.00 pm and midnight but as a result of being on annual leave does not work, they will be taken not to be on annual leave during the hours of the declared or prescribed part-day public holiday between those hours of 7.00 pm and midnight that they would have usually been rostered to work and will be paid their ordinary rate of pay for such hours.

(d) Where a part-time or full-time employee is usually rostered to work ordinary hours on the declared or prescribed part-day public holiday between 7.00 pm and midnight, but as a result of having a rostered day off (RDO) provided under this award, does not work, the employee will be taken to be on a public holiday for such hours and paid their ordinary rate of pay for those hours.

(e) Excluding annualised salaried employees to whom clause E.1(f) applies, where an employee works any hours on the declared or prescribed part-day public holiday between 7.00 pm and midnight they will be entitled to the appropriate public holiday penalty rate (if any) in this award for those hours worked.

(f) Where an employee is paid an annualised salary under the provisions of this award and is entitled under this award to time off in lieu or additional annual leave for work on a public holiday, they will be entitled to time off in lieu or pro-rata annual leave equivalent to the time worked on the declared or prescribed part-day public holiday between 7.00 pm and midnight.

X.2 An employer and employee may agree to substitute another part-day for a part-day that would otherwise be a part-day public holiday under the NES.’

Version 4 is included in the following award:

Version 5:

‘This schedule operates in conjunction with award provisions dealing with public holidays.

X.1 Where a part-day public holiday is declared or prescribed between 6pm and midnight, or 7.00 pm and midnight on Christmas Eve (24 December in each year) or New Year’s Eve (31 December in each year) the following will apply on Christmas Eve and New Year’s Eve and will override any provision in this award relating to public holidays to the extent of the inconsistency:

(a) All employees will have the right to refuse to work on the part-day public holiday if the request to work is not reasonable or the refusal is reasonable as provided for in the NES.

(b) Where a part-time or full-time employee is usually rostered to work ordinary hours on the declared or prescribed part-day public holiday between 7.00 pm and midnight but as a result of exercising their right under the NES does not work, they will be paid their ordinary rate of pay for such hours not worked.

(c) Where a part-time or full-time employee is usually rostered to work ordinary hours on the declared or prescribed part-day public holiday between 7.00 pm and midnight but as a result of being on annual leave does not work, they will be taken not to be on annual leave during the hours of the declared or prescribed part-day public holiday between those hours of 7.00 pm and midnight that they would have usually been rostered to work and will be paid their ordinary rate of pay for such hours.

(d) Where a part-time or full-time employee is usually rostered to work ordinary hours on the declared or prescribed part-day public holiday between 7.00 pm and midnight, but as a result of having a rostered day off (RDO) provided under this award, does not work, the employee will be taken to be on a public holiday for such hours and paid their ordinary rate of pay for those hours.

(e) Where an employee works any hours on the declared or prescribed part-day public holiday between 7.00 pm and midnight they will be entitled to the appropriate public holiday penalty rate (if any) in this award for those hours worked.

(f) An employee whose ordinary pattern of work involves rostered shifts which include the hours on the declared or prescribed part-day public holiday between 7.00 pm and midnight but who is not rostered to work on the declared or prescribed part-day public holiday between 7.00 pm and midnight on 24 December 2017 or 31 December 2017, and who is entitled to the benefit of clause 36.3 or 36.4 of this award, shall be entitled to the benefit of those clauses on a pro-rata basis, by reference to the number of ordinary hours falling on the declared or prescribed part-day public holiday between 7.00 pm and midnight. An employee whose ordinary pattern of work DOES NOT include rostered shifts which include the hours on the declared or prescribed part-day public holiday between 7.00 pm and midnight shall not be entitled to the benefit of clauses 36.3 and 36.4 of this award.

X.2 An employer and employee may agree to substitute another part-day for a part-day that would otherwise be a part-day public holiday under the NES.’

Version 5 is included in the following award:

 1   The Act has received royal assent on 5 December 2019.

 2   Holidays and Other Legislation Amendment Bill 2019 explanatory note

 3   PR532628, PR532630, PR532631, PR532632 and PR532633 The structure of the schedules is largely similar in each of the 113 awards.

 4   [2012] FWAFB 10738 at [10]

 5   [2012] FWAFB 10738 at [11] to [12]

 6   [2013] FWCFB 8938

 7   [2018] FWCFB 3516, [2018] FWCFB 4131 and [2018] FWCFB 5803

 8   [2018] FWCFB 6540

 9   PR701683

 10   [2019] FWCFB 8182