CICS 3/2023 - UnionsWA Incorporated -v- Minister for Industrial Relations, Chamber of Commerce and Industry of Western Australia (Inc), Australian Resources and Energy Employer Association
The Commission made a General Order under s 50 of the Industrial Relations Act 1979 (WA), ensuring that employees required to work on special public holidays, made under the Public and Bank Holidays Act 1972 (WA), were entitled to higher rates of pay.
The order ensures that all industrial instruments made under the Act treat special public holidays and public holidays consistently.
This application sought a General Order under s 50 of the Industrial Relations Act 1979 (WA) to apply to all awards, industrial agreements, enterprise orders and employer-employee agreements made under the Act. The General Order sought was in relation to special public holidays appointed by proclamation under s 7 of the Public and Bank Holidays Act 1972 (WA).
The application arose from the proclamation made by the Governor of Western Australia under the PBH Act that 22 September 2022 would be a special public and bank holiday in this State, following the declaration of a National Day of Mourning on the passing of Her Majesty Queen Elizabeth II. The application sought to remedy a gap in awards of the Commission, which prescribe higher rates of pay for working on a public holiday set out in the award, but makes no provision for payments for working on a special public holiday, applying throughout the State.
The application was unopposed.
UnionsWA identified discrepancies in public holiday and overtime clauses in awards issued by the Commission that do not provide higher pay rates for employees working on special public holidays.
It argued that:
- granting the General Order would align with the objectives of the Act, promote equity and good conscience, and be in the best interests of affected employees and the community;
- evidence was unnecessary since there were no objections, and the gap in existing awards was self-evident; and
- granting the application would not create new entitlements but rather extend existing obligations to pay higher rates of pay for working on special public holidays.
The Minister supported the application with some amendments and pointed out that the Farm Employees Award 1985 did not contain a clause for penalty rates on public holidays and, thus, would not be affected by the General Order.
WALGA disseminated the application widely among its members and allowed individual submissions. None of WALGA’s members opposed the application, with some local governments already paying penalty rates for employees working on special public holidays.
Further, WALGA outlined provisions in three local government awards regarding public holidays and public holiday entitlements, highlighting inconsistencies.
The Commission was satisfied that a General Order ought to be made because such order would be consistent with the objects of the Act and with the equity, good conscience and substantial merits of the case. Further, given the relative rarity of the proclamation of special holidays under the PBH Act, the cost impact of granting the application would not be of significant magnitude to outweigh the substantial merits of the case.
The order extended the same entitlement to higher rates of pay for working on a public holiday under current terms of industrial instruments made under the Act, to those employees who are required to work on a special public holiday.
The decision can be read here.