Fair Work strikes down unions’ public holiday argument

The business community has welcomed a decision by the Fair Work Commission to block recommendations from trade unions relating to public holidays, saying they would have resulted in too many new costs and regulations.

The Australian Council of Trade Unions had argued workers should receive a day off, a day of annual leave or an extra day of pay when public holidays fall on a non-work day, such as a weekend.

“The move is welcome,” says Council of Small Businesses of Australia chief executive Peter Strong. “Businesses want certainty about this.”

The incident gained mainstream attention in 2010, when Christmas Day, Boxing Day and New Year’s Day all fell on weekends. Six states adopted five different approaches to how the public holidays worked with regard to pay. Some used substitute days or additional public holidays, or both.

The commission heard arguments that employees should receive a day off for when public holidays fall on a weekend and receive higher penalty rates for when Christmas Day falls on a weekend.

Employers argued they should pay the penalty rates for only one day, not both. The commission examined each proposal and decided not to uphold them.

With regard to public holidays falling on a non-working day, the commission said there was “insufficient information” to assess the impact of the changes proposed by the ACTU, which would give employees an extra day of leave.

“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.”

Another specific proposal, which would give workers an extra day if Christmas Day falls on a weekend, was rejected. However, the commission said this was “not without merit” and should be revisited in the four-yearly commission review, given that review will occur before the next Christmas Day falls on a Saturday in 2016.

“In such circumstances it is unnecessary for us to express a concluded view on this aspect of the ACTU’s claim. The matter can be reconsidered in the context of the four-yearly review.”

In a statement, Australian Industry Group chief executive Innes Willox said the decision was a win for business, declaring the ACTU claims “costly and unproductive”.

“The sensible decision of the Full Bench is very welcome as the unions’ claims would have saddled industry with a big new cost at a time when many businesses are under pressure,” he said.

The ACTU was contacted by SmartCompany, but a response wasn’t available prior to publication.

The submission itself was complicated, relating to several different awards. Peter Strong says he welcomes the decision as it brings certainty to the small business community.

“We want simple rules; we don’t want more complexity, and having different rules for public holidays can make a lot of businesses scratch their heads.”

The 2010 Christmas public holiday incident repeated itself in 2011, as Anzac Day fell on Easter weekend and states awarded an additional public holiday the following Tuesday. The next Christmas Day also fell on a Sunday, with the same problem.