The applicant, employed as a Funeral Director’s Assistant, filed a claim for denied contractual benefits on the basis that he believed the respondent, his employer, breached his contract by failing to pay him double time and a half for hours worked on public holidays. 

The applicant contended that the language used in both the contract and the attached overtime and allowances sheet implied an additional entitlement for work on public holidays, distinct from ordinary hours. The applicant cited past practice between the parties, where he received 250% of his ordinary rate for public holiday work.

The respondent contended that public holiday hours are not ordinary hours and therefore not subject to ordinary pay, entitling the applicant to either ordinary pay or 250% of his base rate for hours worked on the holiday, but not both simultaneously. As the contract does not address public holidays or payment for absences on such days, the respondent referred to the applicable award which stipulates payment at 200% of the ordinary rate for public holiday work. 

Commissioner Kucera acknowledged the challenges faced by the applicant, who had previously received dual payment for public holiday work. However, based on the contract terms and analysis of the award, the Commissioner determined that the applicant was entitled to either a paid day off at ordinary rates or double time and a half for hours worked on public holidays, but not both concurrently. The Commissioner dismissed the application, finding that the applicant had been correctly paid in accordance with his contract of employment.

 

The decision can be read here.  

Decision issued Tuesday, 26 March 2024.