AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.113 applications for variations
s.107 reference to Full Bench
Construction, Forestry, Mining and Energy Union
TIMBER AND ALLIED INDUSTRIES AWARD 1999
(ODN C No. 31 of 1950)
[AW800937 Print R5055]
(C2004/1024)
FURNISHING INDUSTRY NATIONAL AWARD 2003
(ODN C No. 422 of 1961)
[AW825280CRA PR933234]
(C2004/1025)
Construction, Forestry, Mining and Energy Union
PILKINGTON (AUSTRALIA) OPERATIONS LIMITED AUTOMOTIVE DIVISION, PRODUCTION AND WAREHOUSING AWARD 1998
(ODN C No. 30655 of 1993)
[AW792513 Print R0387]
(C2004/2277)
BAX GLOBAL (AUSTRALIA) PTY LIMITED
AUTOMOTIVE DIVISION AWARD 2003
(ODN C2002/6087)
[AW823444 PR930282]
(C2004/2278)
GLASS MERCHANTS AND GLAZING CONTRACTORS
GENERAL (VICTORIA) AWARD 1997
(ODN C No. 1333 of 1977)
[AW782192 Print P0412]
(C2004/2279)
Liquor, Hospitality and Miscellaneous Union
BUILDING SERVICES (VICTORIA) AWARD 2003
(ODN C No. 21726 of 1992)
[AW822844 Print L2955]
(C2004/2239)
SECURITY EMPLOYEES (VICTORIA) AWARD 1998
(ODN C No. 21725 of 1992)
[AW796143 Print Q6671]
(C2004/2240)
CPSU, the Community and Public Sector Union
PUBLIC SERVICE (NON EXECUTIVE STAFF - VICTORIA)
CONDITIONS AWARD 2001
(ODN C No. 31579 of 1993)
[AW807641 PR904224]
(C2004/2250)
National Union of Workers
GROCERY PRODUCTS MANUFACTURE - MANUFACTURING
GROCERS AWARD 2003
(ODN C No. 1152 of 1985)
[AW820730 PR926383]
(C2004/2251)
STORAGE SERVICES - GENERAL - AWARD 1999
(ODN C No. 32518 of 1992)
[AW796791 Print R1040]
(C2004/2252)
RUBBER, PLASTIC AND CABLE MAKING INDUSTRY -
GENERAL - AWARD 1998
(ODN C No. 1800 of 1982)
[AW794720 Print R4420]
(C2004/2253)
Transport Workers' Union of Australia
TRANSPORT WORKERS AWARD 1998
(ODN C No. 1520 of 1982)
[AW799474CRN Print Q8693]
(C2004/2268)
TRANSPORT WORKERS (LONG DISTANCE DRIVERS) AWARD 2000
(ODN C No. 126 of 1986)
[AW805988 PR900815]
(C2004/2269)
Australian Municipal, Administrative Clerical Services Union
CLERICAL AND ADMINISTRATIVE EMPLOYEES (VICTORIA) AWARD 1999
(ODN C No. 34749 of 1995)
[AW773032 Print S1367]
(C2004/2270)
The Association of Professional Engineers, Scientists and Managers, Australia
TECHNICAL SERVICES PROFESSIONAL ENGINEERS
(GENERAL INDUSTRIES) AWARD 1998
(ODN C No. 189 of 1982)
[AW800659CAN Print Q2656]
(C2004/2281)
SCIENTIFIC SERVICES PROFESSIONAL SCIENTISTS AWARD 1998
(ODN C No. 434 of 1981)
[AW797607CRN Print Q2622]
(C2004/2282)
TECHNICAL SERVICES - ARCHITECTS - AWARD 2000
(ODN C No. 232 of 1999)
[AW801194CRA Print S4622]
(C2004/2283)
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and
Allied Services Union of Australia
AUSTRALIA POST GENERAL CONDITIONS OF EMPLOYMENT AWARD 1999
(ODN C No. 25759 of 1989)
[AW766597 Print S0871]
(C2004/2284)
TELSTRA CORPORATION GENERAL CONDITIONS AWARD 2001
(ODN C No. 30035 of 1996)
[AW806392 PR907449]
(C2004/2285)
Textile, Clothing and Footwear Union of Australia
FOOTWEAR INDUSTRIES AWARD 2000
(ODN C No. 291 of 1959)
[AW781127 Print S4551]
(C2004/2288)
TEXTILE INDUSTRY AWARD 2000
(ODN C No. 31154 of 1993)
[AW799036 Print S3170]
(C2004/2289)
CLOTHING TRADES AWARD 1999
(ODN C No. 696 of 1980)
[AW772144CRA Print S1147]
(C2004/2290)
Australian Nursing Federation
NURSES (AUSTRALIAN NURSING FEDERATION - PRIVATE
PATHOLOGY VICTORIA) AWARD 1995
(ODN C No. 606 of 1983)
[AW790962 Print M2056]
(C2004/2412)
DEPARTMENT OF HUMAN SERVICES (NURSES) AWARD 2002
(ODN C No. 33499 of 1991)
[AW814753 PR915868]
(C2004/2413)
THE NURSES (VICTORIAN MEDICAL CENTRES AND CLINICS) AWARD 2000
(ODN C No. 38312 of 2000)
[AW806312 Print T4827]
(C2004/2414)
VICTORIAN INDEPENDENT SCHOOLS - NURSES - AWARD 2003
(ODN C2001/46)
[AW821844 PR927991]
(C2004/2415)
NURSES (ANF - VICTORIAN LOCAL GOVERNMENT) AWARD 2002
(ODN C No. 32043 of 1990)
[AW825442 PR933642]
(C2004/2416)
NURSES (VICTORIAN HEALTH SERVICES) AWARD 2000
(ODN C No. 606 of 1983)
[AW790805 Print T0356]
(C2004/2420)
Finance Sector Union of Australia
BANKING SERVICES - ANZ GROUP - AWARD 1998
(ODN C No. 32814 of 1991)
[AW770930 Print Q5184]
(C2004/2425)
BENDIGO BANK AWARD 1999
(ODN C No. 32098 of 1993)
[AW769654 Print S0303]
(C2004/2426)
CREDIT UNION AWARD 1998
(ODN C No. 31343 of 1991)
[AW772291 Print Q8351]
(C2004/2429)
NATIONAL AUSTRALIA BANK GROUP AWARD 2002
(ODN C No. 641 of 1998)
[AW818201 PR922194]
(C2004/2434)
THE NOTE PRINTING AUSTRALIA AWARD 2000
(ODN C No. 2185 of 1987)
[AW790759 Print K0139]
(C2004/2435)
SUPERPARTNERS AWARD 2004
(ODN C2004/1246)
[AW832634 PR944291]
(C2004/2441)
INSURANCE INDUSTRY AWARD 1998
(ODN C No. 571 of 1983)
[AW784988 Print Q1907]
(C2004/2443)
SENIOR DEPUTY PRESIDENT WATSON |
|
SENIOR DEPUTY PRESIDENT KAUFMAN |
|
COMMISSIONER MANSFIELD |
MELBOURNE, 20 APRIL 2004 |
Varying the public holiday clause in relation to ANZAC Day.
DECISION
[1] This decision concerns applications (35 in total) by various unions for variation of the awards listed above seeking to provide a public holiday, in lieu of ANZAC Day (25 April), for Federal award covered employees on the Monday following ANZAC Day when ANZAC Day falls on a Saturday or Sunday. The applications are made in the context of ANZAC Day in 2004 falling on a Sunday. They are directed to providing the substituted public holiday in the States of Victoria and Tasmania in circumstances where a substituted or additional day has been proclaimed for 2004 by the Government of each State and Territory other than Victoria and Tasmania. The terms of the proposed orders are more general in that they provide for a substitute public holiday on an ongoing basis where ANZAC Day falls on a Saturday or Sunday in any State or Territory in which the awards apply.
[2] The applications have practical relevance in respect of ANZAC Day 2004 and thereafter, when ANZAC Day next falls on a Saturday or Sunday. The next such occurrences are 2009 in respect of Saturday and 2010 in respect of Sunday.
[3] On 26 March 2004, each of the applications was referred to this Full Bench by the President, pursuant to s.107 of the Workplace Relations Act 1996 (the Act). Various unions have filed applications in similar terms to the 35 applications before us. There were, at the time of the hearing, in excess of 250 such applications filed. Accordingly, the present applications have been dealt with as a Test Case, with leave to intervene being afforded to parties to any of the applications not referred to this Full Bench.
[4] We took the view that the Test Case applications ought be heard with expedition in light of the practical effect of the orders sought, if granted, in respect of ANZAC Day 2004. As a result, we issued directions on 26 March 2004 requiring the filing and serving of full written submissions, evidentiary material and authorities by dates in advance of the hearing date of 7 April 2004.
[5] At the conclusion of the hearing on 7 April 2004, and with the benefit of consideration of the submissions, evidence and authorities filed in advance of the hearing, we announced the following decision:
"We have had the benefit of written submissions on behalf of the applicant unions which we have been able to consider since filed on 31 March and written submissions of other parties and interveners, in most cases filed on 6 April. We have considered those submissions and the viva voce submissions put today in support of the written submissions.
In circumstances where we have had an opportunity to consider written and oral submissions and have reached a concluded view, the timing of the applications, the proximity of Anzac Day 2004 and the desirability of certainty at the earliest possible time for employers and employees alike, we think it desirable to announce our decision now and later publish our reasons.
On the basis of the submissions and evidence before us we are not satisfied that the applicant unions have made out a sufficient case for the orders sought. The applications are dismissed. We will publish our reasons for decision in due course." 1
[6] Our reasons for decision follow.
THE APPLICATIONS
[7] The applications before us seek to vary the public holiday provisions of the relevant awards. The existing provisions arise out of and reflect the decisions of the Full Bench in the 1994 Public Holidays Test Case.2 The relevant parts of the current safety net provision as contained in one of the awards before us, the Storage Services - General - Award 1999 [AW796791], are as follows:
"31. PUBLIC HOLIDAYS
31.1 Prescribed public holidays
An employee shall be entitled to holidays on the following days:
31.1.1 New Year's Day, Good Friday, Easter Saturday, Easter Monday, Christmas Day and Boxing Day;
31.1.2 The following days, as prescribed in the relevant States, Territories and localities: Australia Day, Anzac Day, Queen's Birthday and Eight Hour's Day or Labour Day; and
31.1.3 Union Picnic Day in lieu of Melbourne Cup Day.
31.2 Public holidays falling on a Saturday or Sunday
31.2.1 When Christmas Day is a Saturday or a Sunday, a holiday in lieu thereof shall be observed on 27 December.
31.2.2 When Boxing Day is a Saturday or a Sunday, a holiday in lieu thereof shall be observed on 28 December.
31.2.3 When New Year's Day or Australia Day is a Saturday or Sunday, a holiday in lieu thereof shall be observed on the next Monday.
31.3 Additional public holidays
Where in a State, Territory or locality, public holidays are declared or prescribed on days other than those set out in 31.1 and 31.2, those days shall constitute additional holidays for the purpose of this award."3
[8] That provision gives effect to the safety net established by the 1994 Public Holidays Test Case.
[9] The variations sought by the applicant unions seek to insert an additional clause, substituting a holiday on the Monday following ANZAC Day in lieu of the ANZAC Day holiday when ANZAC Day falls on a Saturday or Sunday. To illustrate, in respect of the Storage Services - General - Award 1999, the application seeks to add a new clause 31.2.4 as follows:
"When Anzac Day is a Saturday or Sunday, a holiday in lieu thereof shall be observed on the next Monday."
[10] The grounds advanced for the variations, again by reference to the application in respect of the Storage Services - General - Award 1999, are as follows:
"[1.] Anzac Day 2004 falls on a Sunday. The State of Victoria is the only Australian state or territory not to have gazetted Monday 26 April as a substitute public holiday.4
[2.] The Public Holidays Test Case decision of the Commission [Print L4534] described the Commissions view of substitution in the following terms. `That when a prescribed holiday, other than Anzac Day, falls on a Saturday or Sunday, a substitute day is provided. An effect of the above provisions is that the amount of leave is reduced by one day in those years wherein Anzac Day falls on a Saturday or Sunday. This accords with current practice in most States and, with respect to those States, is accepted by the unions.' This view was reflected in the model clause prescribed by the Full Bench.
[3.] There is now a national standard in respect of the substitution of Anzac day that did not exist at the time the matter was last considered by the the Commission. The new national standard should be reflected in Awards of the Commission and be incorporated in the safety net standard.
[4.] The Commission can make Awards providing for substitution irrespective of the decisions taken by State Governments. As the Full Bench [Print L4534] has observed `Further, the Commission does not trespass on the States' authority if it prescribes that, when a specified day such as Christmas Day or Australia Day falls on a Saturday or a Sunday, there will be a holiday on the next Monday in lieu of the "actual" day. Such a prescription is limited, of course, to the Commission's awards.'
[5.] The application is consistent with and promotes the objects of the Act.
[6.] Such other grounds as may be advanced at the hearing of the matter.
[7.] Any other reason deemed appropriate by the Commission."
[11] In effect, the applications seek to vary the safety net provision determined by the Full Bench in the 1994 Public Holidays Test Case, having regard to alleged changed circumstances or, as it was later contended by the unions, misinformation upon which the Full Bench reached its decision.
[12] In determining the safety net provision, the 1994 Public Holidays Test Case Full Bench found:
"Although the leave which employees enjoy under the broad characterisation of `public holidays' is a significant benefit and, as such, ought not to be excluded from the `safety net' concept, the safety net standard goes more, we think, to the quantum of leave than to the specification of days. There are, however, some days which have special significance in community mores - a significance which the awards may well reflect. These days are Good Friday, Anzac Day and Christmas Day. Otherwise, the specification of days should be seen as variable over time and between States, Territories and even localities. No arguments have been put to us which justify either an expansion or a contraction in the standards which had developed by the early 1990s. Though there are some variations between States, we think that a prescription of ten days (excluding Easter Saturday) gives reasonable effect to the criterion of minimum change. With that standard in mind, we think that award provisions at this time should normally provide:
An effect of the above provisions is that the amount of leave is reduced by one day in those years wherein Anzac Day falls on a Saturday or Sunday. This accords with current practice in most States and, with respect to those States, is accepted by the unions."5
[13] The safety net standard for public holidays prescribed in 1994 is of ten days (excluding Easter Saturday), subject to there being no substitution in respect of ANZAC Day if it falls on a weekend. Accordingly, the amount of leave is reduced by one day in those years where ANZAC Day falls on a Saturday or Sunday.
[14] The applications before us were made following decisions by the Governments of Victoria6 and Tasmania7 not to proclaim a substitute public holiday in lieu of ANZAC Day 2004, which falls on a Sunday.
[15] The applicant unions sought the making of interim orders in the event that the applications could not be determined before 25 April 2004. Given that the applications were determined before that time, it is not necessary to address the issue of interim orders.
PARTIES AND INTERVENORS
[16] The applicant unions were represented collectively by T. Lyons (National Union of Workers), R. Frenzel (Liquor, Hospitality and Miscellaneous Union) and N. Niven (Victorian Trades Hall Council). We were advised that it was intended that applications of similar effect to those presently before us were to be made in respect of all awards operating in Victoria and Tasmania, in order to ensure a consistent outcome in relation to Federal awards in those States and that the applicant unions' representatives were authorised to put submissions on behalf of additional unions making such applications.
[17] The submissions of the applicant unions were supported by the Australian Council of Trade Unions (ACTU) (intervening) and by Unions Tasmania (the State Branch of the ACTU) on behalf of affiliates party to the relevant awards.
[18] The applications were opposed by:
[19] The Bendigo Bank sent correspondence opposing the application in respect of the Bendigo Bank Award 1999 and indicated its support for the submissions of the employer organisations. The National Bank of Australia sent correspondence not consenting to the application in respect of the National Australia Bank Group Award 2002, noting the submissions in opposition of employer organisations and not putting further submissions. Wilson Group Services, a respondent to the Security Employees (Victoria) Award 1998, sent correspondence advising that it wished to make no submissions in relation to the application in respect of that award.
THE SUBMISSIONS OF THE APPLICANT UNIONS
[20] The applicant unions submitted that the intervention of the Commission was necessary to maintain for Victorian and Tasmanian workers what they contended was a nationally established safety net of eleven public holidays and to facilitate national consistency in relation to a public holiday that will already be observed on 26 April in six of the eight States and Territories.
[21] They further submitted that the safety net in respect of public holidays is ten nationally observed days (including ANZAC Day) and one locally observed day. It was submitted that the "safety net" is not synonymous with the "status quo (however defined)"8 and may be varied whereupon "balancing all of the considerations" an "improvement is appropriate."9 The applicant unions submitted that the safety net may change "in response to economic, social and industrial circumstances"10 in order to maintain "an effective award safety net." 11
[22] The applicant unions submitted that the 1994 Public Holidays Test Case Full Bench did not have before it any claims concerning ANZAC Day, and was to an extent misinformed concerning the pattern of observance of ANZAC Day. The misapprehension, created or contributed to by the parties before it, was said to be that there was no common national standard in respect of the substitution of ANZAC Day. The applicant unions contended that, on that basis alone, the present applications raise matters warranting a review of the existing standard. They submitted that the current Test Case standard is out of step with the national standard covering the observance of ANZAC Day as by failing to apply the substitution principle to ANZAC Day (alone among the variable public holidays) it no longer provides an appropriate "point of reference" for Federal awards. They submitted that the national standard is evident in the substitution for ANZAC Day when it falls on a Sunday in the overwhelming majority of State and Territory jurisdictions and, in addition, the automatic substitution when public holidays (including ANZAC Day) fall on a Saturday in Western Australia. It was submitted that this situation, contrary to the observations made in the 1994 Public Holidays Test Case (Print L4534), has existed since the mid 1970s.12
[23] In the alternative, they submitted that substitution for ANZAC day when it falls on a Sunday is now the national standard.
[24] The applicant unions submitted that there has been a gradual extension of substitution provisions in legislation and in awards over the last 50 years,13 reflecting an increasing correlation of public holidays with actual leisure time for employees in decisions of the Commission since the 1970s. This it was submitted is consistent with the "quantum" of leave standard explicitly adopted in 1994.
[25] The applicant unions summarised their grounds in support of the claim as follows:
SUBMISSIONS IN OPPOSITION TO THE APPLICATIONS
[26] It is not necessary to separately record the substance of each of the submissions in opposition to the applications. There was considerable overlap between the submissions, with differing emphases and with particular submissions and evidence directed to specific industries and single enterprise awards. The major contentions arising out of those submissions were:
DECISION
[27] The present applications are directed to amending the 1994 Public Holidays Test Case provision determined by the 1994 Full Bench.21 As noted above, having regard to the decision of that Full Bench22 the safety net standard for public holidays is ten days (excluding Easter Saturday), with no substitution for ANZAC Day, such that the amount of leave is reduced by one day in those years where ANZAC Day falls on a Saturday or Sunday.
[28] We accept that that standard may be varied "in response to economic, social and industrial circumstances"23 in order to maintain "an effective award safety net."24 The question confronting us is not whether a variation to the current safety net can be made, but whether the variations sought by the applicant unions are justified in the circumstances of the present matters.
[29] We do not accept the proposition that the applications are justified in order to "protect the `10+1' standard as a minimum". As already noted, the 1994 standard was specifically and clearly subject to the caveat "that the amount of leave is reduced by one day in those years wherein Anzac Day falls on a Saturday or Sunday". The existing award provisions reflect the standard established by the Full Bench in 1994. The real question is whether a case has been made out to depart from that prescription.
[30] In addressing this question, the applicant unions relied upon several grounds:
A National Consensus on Substitution of the ANZAC Day holiday?
[31] The applicant unions relied considerably on what they described as a "national consensus", "national standard" or "national custom and practice" on the substitution of ANZAC Day, which they contended, predates the 1994 Public Holidays Test Case decision. It is necessary to consider whether there is a national consensus and, if there is, whether it should be incorporated into the Commission's public holidays safety net standard.
[32] An additional day on the following Monday is created as a public holiday, where ANZAC Day falls on a Sunday, in Queensland,25 South Australia,26 and Western Australia. Sunday 25 April is retained as a public holiday.27 In New South Wales28 the Northern Territory29 and the Australian Capital Territory30 the following Monday is substituted as the public holiday, but Sunday the 26th is not recognised as such. In Victoria31 and Tasmania32 ANZAC Day (25 April) is set as a holiday, with no automatic substitution where it falls on a Saturday or Sunday. The Governments in those States have historically not proclaimed a substitute holiday in either case. Only in Western Australia does legislation automatically substitute a public holiday on Mondays in respect of ANZAC Day when it falls on a Saturday.33
[33] We are not satisfied that there exists a national consensus or national custom and practice in respect of the substitution of a public holiday for ANZAC Day, where it falls on a Sunday. Whilst presently and for some considerable period, a majority of States and Territories (six of eight) provide for a substitute or alternate public holiday in that circumstance, we are not satisfied that there exists a national consensus which supports the intervention of the Commission, contrary to the approach of the 1994 Public Holidays Test Case Full Bench, warranting an overriding of the historical rights of the Governments of Victoria and Tasmania not to proclaim a substitute public holiday for ANZAC Day where it falls on a Sunday.
[34] There is simply no basis for the Commission including a substitute public holiday in its safety net public holidays where ANZAC Day falls on a Saturday given that only Western Australia prescribes by legislation for such a substitute public holiday.
[35] We are not satisfied that present circumstances support a variation to the public holidays safety net provision to provide for a substitute public holiday for ANZAC Day where it falls on a Saturday or Sunday.
Equity?
[36] We accept that the present public holidays safety net provision does, in leaving the proclamation of substitution of public holidays to State and Territory Governments, create a differential outcome between Federal award employees in different States and Territories in the present circumstances where some but not all such Governments proclaim such a substitute holiday. We accept that this creates particular problems for employees resident on border locations where different approaches apply on either side of the boundaries. The 1994 Full Bench recognised these differential outcomes when it fixed a safety net standard but did not usurp the prerogative of the States and Territories of "declaring" Australia Day, ANZAC Day, the Queen's Birthday and Labour Day, as well as local holidays such as Melbourne Cup Day and Proclamation Day to be public holidays.34 The question arises as to whether we should depart from that approach, in respect of ANZAC Day, in order to provide greater uniformity in respect of the public holiday safety net entitlements for Federal award employees.
[37] We are not satisfied that we should depart from the approach adopted by the Full Bench in the 1994 Public Holidays Test Case. We have reached that conclusion having regard to the safety net nature of the public holiday provision, and the capacity to depart from it through enterprise bargaining in which the particular circumstances of an enterprise can be addressed. We have taken this view partly because the granting of the claim would create differential outcomes as between Federal award regulated employees and non-Federal award employees within Victoria and Tasmania and, more particularly, within firms and workplaces within those States. In circumstances where a substantial portion of employees in each State is not subject to Federal award regulation (over 30% in Victoria and approaching 50% in Tasmania) addressing an inequity between Federal award employees across State borders would create a substantial inequity within the States and, more particularly, between employees within the same enterprise within those States.
Public Policy Considerations?
[38] The applicant unions contended that their applications were in line with a widely accepted public policy objective: the common observance of public holidays. We have no doubt that there would be some public policy benefit derived from the common observance of "national" public holidays. So much was recognised in the decisions arrived at by the Premiers Conference in 1921 and the Uniformity of Public Holidays decision of the 1993 meeting of the Council of Australian Governments.35 However, for the reasons recorded above in relation to equity, it is not possible for the Commission, dealing only with Federal award employees to bring about a common observance of public holidays, even if consideration is restricted to "national" public holidays. Action by the Commission to achieve greater uniformity between Federal award employees would be limited, unless directed, beyond ANZAC Day, to the Queen's Birthday and Labour Day holidays, which are not uniformly celebrated, and the additional holiday, prescribed in the 1994 Public Holidays Test Case standard. Further, any greater conformity between Federal award employees would, without complimentary action by State and Federal Governments, create disconformity within the States of Victoria and Tasmania and, significantly, within enterprises and workplaces within those States. In these circumstances, we are not prepared to depart from the approach of the 1994 Public Holidays Test Case Full Bench,36 and the limitations expressed as to the extent to which the Commission ought trespass on the authority of the States and Territories. The Full Bench in that decision stated in part:
"Some other holidays have a different character. Australia Day, Anzac Day, the Queen's Birthday and Labour Day, as well as local holidays such as Melbourne Cup Day and Proclamation Day, exist by reason of governmental instruments, although that fact may perhaps be circumvented by alternative designations such as `25 April' and `the first Tuesday in November'. The Commission, we think, ought not to usurp the function of `declaring' such days to be public holidays."37
Efficiency and Cost Considerations?
[39] We do not accept the proposition that the granting of the claim will impose no cost upon employers. The proposition is based on a misunderstanding of the safety net provision determined in 1994 and presently reflected in the awards before us. The 1994 safety net prescription is premised on an understanding that the amount of leave is reduced by one day in those years where ANZAC Day falls on a Saturday or Sunday. It cannot be said that the granting of the applicant unions' claim involves no additional cost against the present award prescription.
[40] In our view there is a cost, in the form of an additional day's payment and/or additional penalty payments if employees work on the substitute day (subject to savings arising from the absence of public holiday penalties in respect of work undertaken on 25 April). Such a cost might be relatively limited, in the context of total employment costs. Nonetheless, there is a cost. Such a general cost would be markedly increased in respect of ANZAC Day 2004 in light of the limited time available to employers to adjust arrangements were we to grant the applicant unions' claim in respect of 2004 at this late stage. We accept from the evidence provided by employers that additional costs would arise in 2004 from re-organising arrangements already entered into and, in the case of some employers, by removing an effective choice as to whether or not to close down on 26 April or incur penalty payments in light of commercial or legislative constraints. Other issues were also raised in respect of ANZAC Day 2004, but in view of our decision to generally refuse the claim it is not necessary to deal with the further issues particular to 2004.
CONCLUSION
[41] We are not satisfied that the applicant unions have made out a sufficient case for the orders sought. The applications are dismissed.
[42] As noted above, there exist further applications in respect of over 250 Federal awards awaiting the outcome of the present Test Case proceedings. We request that the Victorian Trades Hall Council co-ordinate advice to the Commission as to the intention of applicant unions in respect of these applications in light of our decision.
BY THE COMMISSION:
SENIOR DEPUTY PRESIDENT
Appearances:
T. Lyons for the National Union of Workers with R. Frenzel for the Liquor, Hospitality and
Miscellaneous Union, N. Niven for the Victorian Trades Hall Council, K. Wild for the
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (intervening),
J. Smith for the Transport Workers' Union of Australia, S. Svendsen for the Australian
Municipal, Administrative, Clerical and Services Union, V. Wiles for the Textile, Clothing
and Footwear Union of Australia, R. Richardson for the CPSU, the Community and Public
Sector Union, D. Martin and M. Maloney for the Finance Sector Union of Australia, L. Kelly
for the Australian Nursing Federation and I. Bryant for the Communications, Electrical,
Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
A.J. O'Brien with J. Woodgate for the Minister for Employment and Workplace Relation on
behalf of the Commonwealth (intervening).
J. MacLean for the State of Victoria.
P. Eberhard for the Victorian Employers' Chamber of Commerce and Industry.
R. Marasco for The Australian Industry Group.
S. White with M. Weldon for The Australian Retailers Association.
F. Parry for the Australia and New Zealand Banking Group Limited.
S. Wood for the Telstra Corporation Limited.
M. Watson for the Tasmanian Chamber of Commerce and Industry.
J. Vaiciulis for the Australian Postal Corporation.
E. Watt for respondent members.
M. Rahilly for respondent clients of Clare Dewan & Associates.
R. Corboy for Victorian Hospitals' Industrial Association.
D. Blanksby for the Glass Merchants and Glaziers Association.
N. Harrington for the Returned Services League (Victorian Branch).
P. Ronfeldt for Australian Business Industrial and its members.
R. Watts for the Australian Council of Trade Unions (intervening).
C. Harnath for the Master Plumbers and Mechanical Services Association of
Australia (intervening).
Hearing details:
2004.
Melbourne:
April 7.
Printed by authority of the Commonwealth Government Printer
<Price code F>
2 Prints L0498 (15 December 1993), L4534 (4 August 1994) and L9178 (20 March 1995), per Hancock SDP, MacBean DP and O'Shea C.
3 The provision then provides for substitution, by agreement at the workplace (cl. 31.4), penalty rates for work on a public holiday (cl.31.5), treatment of rostered days off falling on a public holiday (cl.31.6) and absence before or after a public holiday (cl. 31.7).
4 Submissions revealed that the situation in Victoria also applied in the State of Tasmania, albeit that in Tasmania Easter Tuesday is gazetted as a public holiday.
5 1994 Public Holidays Test Case, Print L4534 at p 20.
6 Media Release from the Minister for Small Business of 12 February 2004 in Exhibit Victoria 1, supporting document 3.
7 Arising as early as 2000 from the operation of the Statutory Holidays Act 2000 (Tas). Exhibit TCCI 1 at para 34.
8 1994 Public Holidays Test Case, Print L4534 at p 20.
9 2004 Redundancy Test Case (PR032004) at para 128.
10 Safety Net Review May 2003 Statement of Principles PR002003.
11 Workplace Relations Act 1996, s.3(d)(ii).
12 1976 ANZAC Day Test Case, Print C7199; (1976) 176 CAR 485.
13 Re Vehicle Industry Award, 1953; (1966) 116 CAR 583, Public Holidays Test Case; (1973) 153 CAR 704, 1976 ANZAC Day Test Case, Print C7199; (1976) 176 CAR 485, Public Holidays Test Case 1981 Print E6455; (1981) 257 CAR 619 and the 1994 Public Holidays Test Case, Print L4534.
14 1994 Public Holidays Test Case, Print L4534 at p. 20.
15 Victoria 1, supporting document 4.
16 1976 ANZAC Day Test Case (1976) 176 CAR 485.
17 1994 Public Holidays Test Case, Print L4534.
18 For example, the Victorian Public Service (Non-Executive Staff) Agreement 2001 [AG815866 PR917687].
19 Independent Report of the Victorian Industrial Relations Task Force.
21 1994 Public Holidays Test Case, Print L4534.
22 1994 Public Holidays Test Case, Print L4534 at p. 20.
23 Safety Net Review May 2003 Statement of Principles PR002003.
24 Workplace Relations Act 1996, s.3(d)(ii).
25 Holidays Act 1983 (Qld), s.2(2) and Schedule Part2.
26 Holidays Act 1910 (SA), s.3A.
27 Public and Bank Holidays Act 1972 (WA), Second Schedule.
28 Banks and Bank Holidays Act 1912 (NSW), Fourth Schedule, Part1.
29 Public Holidays Act (NT), Second Schedule.
30 Holidays Act (ACT), s.3(1)(a)(vii).
31 Public Holidays Act 1993 (Vic).
32 Statutory Holidays Act 2000 (Tas).
33 Public and Bank Holidays Act 1972 (WA), Second Schedule.
34 1994 Public Holidays Test Case, Print L4534 at p. 19.