As previously reported, Queensland’s Parliament passed a new law in late November making the hours of 6pm to midnight on Christmas Eve a public holiday.
However, there was significant uncertainty around whether the measure would take effect this year or next, given that modern awards were unlikely to be updated to include the change in time for Christmas 2019.
The Fair Work Commission subsequently acknowledged inconsistencies in the 122 modern awards around part-day public holidays, given that they are only stipulated within 113 of the awards, and that those mentions refer to the hours between 7pm and midnight, rather than Queensland’s earlier start time of 6pm.
In a bid to “remove ambiguity or uncertainty or correct error[s]”, the Fair Work Commission proposed amending the awards.
The commission noted that following its proposal about amending the awards, Queensland’s Minister for Education and Industrial Relations, Grace Grace, had weighed in on the matter.
It quoted her as writing to the commission stating:
“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.”
Awards to cover various start times
“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,” the commission said.
“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.”
The first of those amendments will see references to part-day holidays have the times replaced by more generalised wording: i.e. mentions of part-day public holidays “between 7.00pm and midnight” will be replaced with the words “on the declared or prescribed part-day public holiday”.
This will mean that appropriate penalty rates for any hours worked on a public holiday apply under the relevant times stipulated by state and territory laws.
Changes in force for Christmas 2019
The other source of confusion — whether the change would be enforced this year — has also been laid to rest: employers with Queensland-based staff working beyond 6pm on Christmas Eve will be required to pay public holiday penalty rates for those hours this year.
“An issue arose during the hearing on 16 December 2019 regarding the operative date of the variation determinations,” the commission noted.
“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.
“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.”
As such, the Fair Work Commission has used legal provisions to backdate the determination to 18 November 2019, meaning that all fortnightly and monthly pay cycles should have the change in place for Christmas Eve this year.
Awards covered by these changes include those for airlines and airport staff, emergency services personnel, aged care providers, broadcasters, cleaners, fast food outlets, restaurants, security services and transport services.
According to the Fair Work Commission, both the Australian Industry Group (Ai Group) representing business and the United Workers’ Union filed submissions in support of the proposed changes, and that “no party opposed such a course”.
The commission’s full decision on the matter can be found on its website.