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Fair Work Australia (FWA) has rejected numerous applications to vary modern awards in respect of their public holiday provisions, including one from the Australian Industry Group and four from unions.

The Australian Industry Group applied to Fair Work Australia to vary the Manufacturing Award 2010 to remove what it claimed was "ambiguity" around an award clause in terms of the requirement to pay penalty rates for an actual public holiday such as Christmas Day as well as any public holidays that were substituted for that public holiday.

The issue arose because in 2010, Christmas Day and New Year's Day fall on a Saturday. As a result, some state governments have moved to legislate substitute public holidays for the following Monday.

It is common practice for a substitute day to be proclaimed a public holiday instead of the actual day but state governments are now moving to declare both the substitute day and the actual day as public holidays. This has the effect of creating extra public holiday penalty rate entitlements for workers as well as giving them the right to refuse to work on more days during the holiday period.

The AiGroup argued a specific clause in the Manufacturing Award was ambiguous because it was unclear whether it required penalty rates to be applied to both the substitute day and the public holiday. The AiGroup argued the penalty rates only applied to the substitute day, not the actual Christmas Day, and so the award needed to be clarified to reflect that.

The Full Bench agreed the clause was ambiguous but took the approach of removing it altogether, saying it did not in any case apply as the AiGroup argued it did.

The union applications

 

The four union applications were also dismissed, which sought to have an extra 50% public holiday penalty applied in addition to ordinary rates for Christmas Day work in certain awards.

"The additional penalty rate in respect of Christmas Day is not a prevailing standard in the underlying award-based transitional instruments that previously covered the employers and employees now covered by the modern Manufacturing Award, modern Cleaning Award, modern Security Award or modern Nurses' Award," the Full Bench said.

Implications for members

 

 

The decision means that for employers and employees covered by the modern awards mentioned in the case, the penalty rates that apply on Christmas Day will vary according to the state or territory in which the work is performed. This will depend on whether the states have declared the actual Christmas Day a public holiday or whether they have only declared the following Monday a public holiday.

To view the decision click here.