No change to public holidays in awards

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No change to public holidays in awards

The Fair Work Commission (Modern Awards Full Bench) has rejected proposals to extend public holiday entitlements in its Transitional Review Public Holidays decision, handed down on Friday.

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The Fair Work Commission (Modern Awards Full Bench) has rejected proposals to extend public holiday entitlements in its Transitional Review Public Holidays decision, handed down on Friday.

The Commission conducted the review of  modern awards as required by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The Commission was hearing an application by the Australian Council of Trade Unions (ACTU) and other affiliated unions to insert a model public holidays clause in a large number of modern awards.
 
The ACTU‘s claim had three main aspects:
  1. part-time employees to receive an entitlement to public holidays on days they do not ordinarily work
  2. rostered Days Off (RDOs) must not be scheduled to be taken on a public holiday
  3. employees working on Christmas Day where it falls on a Saturday or Sunday and is not a public holiday to be paid an additional loading of 50 per cent of their ordinary time rate for the hours worked on that day and be entitled to the benefit of the substitute day.
The Full Bench (Justice Iain Ross, Deputy President Greg Smith and Commissioner Peter Hampton) noted that as transitional arrangements for modern awards were continuing until 1 July 2014, this ‘… militates against the adoption of broad changes to modern awards as part of the Transitional Review’. It considered the four-yearly review process as a more appropriate forum for the review of extensive change proposals.
 
The Commission rejected each element of the ACTU's proposal for a model clause.
 
Part-time employees
 
In relation to the claim for part-time employees to receive public holiday entitlements, the Commission left open the prospect, stating that ‘… the ACTU’s claim is not without merit …’, however it considered ‘…in our view [it] is more appropriately dealt with in the 4 yearly review of modern awards ...’
 
The Full Bench further commented:
‘[67] On the material before us there is insufficient information to adequately assess the impact of the proposed change. The same may be said of the ACTU's proposed model clause as a concept. Further, we consider that the practical operation of the proposed model provision to different patterns of employment as provided in some of the modern awards is uncertain and may well create unintended consequences.’
RDOs not to be scheduled on public holidays
 
In relation to the claim for RDOs not to be scheduled to be taken on public holidays, the Full Bench commented:
‘[177] There is no evidence before us as to the extent of concerns or the nature of present arrangements in workplaces regarding RDOs and public holidays that demonstrate a need to adopt modified arrangements with the modern awards.’
The Commission declined to make a decision in relation to the claim for higher penalties when Christmas Day fell on a weekend because this would not occur again until 2016 ‘… and accordingly the claim can be considered in the more comprehensive 4 yearly review of all modern awards’.
 
 
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