APPLICATION FOR GENERAL ORDER - PROVISIONS IN INDUSTRIAL INSTRUMENTS FOR SPECIAL DAYS APPOINTED UNDER SECTION 7 OF THE PUBLIC AND BANK HOLIDAYS ACT 1972

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES UnionsWA Incorporated

APPLICANT

-v-

CHAMBER OF COMMERCE AND INDUSTRY OF WESTERN AUSTRALIA LIMITED, AUSTRALIAN MINES AND METALS ASSOCIATION, THE HON. MINISTER FOR INDUSTRIAL RELATIONS

RESPONDENTS

CORAM COMMISSION IN COURT SESSION

Chief Commissioner S J Kenner

Senior Commissioner R Cosentino

Commissioner T B Walkington

DATE Tuesday, 2 May 2023

FILE NO/S CICS 3 OF 2023

CITATION NO. 2023 WAIRC 00248

Result  Order issued

Representation

Applicant   Mr C Fogliani of counsel

Respondents   Ms A Kothapalli and with her Mr B Entrekin on behalf of the Hon. Minister for Industrial Relations

No appearance on behalf of the Chamber of Commerce and Industry of Western Australia Limited

No appearance on behalf of Australian Resources and Energy Employer Association

Order

WHEREAS UnionsWA has applied to the Commission in Court Session under section 50 of the Industrial Relations Act 1979 (WA) for a General Order to ensure that all employees covered by an industrial instrument that provides for a higher rate of pay for working on a public holiday specified in that industrial instrument must also be paid that higher rate of pay when working on a special public holiday proclaimed under section 7 of the Public and Bank Holidays Act 1972 (WA);

AND WHEREAS the Minister for Industrial Relations supports the intent of the application by UnionsWA, but raised concerns the proposed wording of the General Order could have unintended consequences;

AND WHEREAS UnionsWA has agreed to amend its application for a General Order;

NOW THEREFORE, the Commission in Court Session by consent orders:

 THAT UnionsWA be and is hereby granted leave to amend its application in the terms of Schedule 1 as attached.

Chief Commissioner S J Kenner

For and on behalf of thE

Commission in court session

Schedule 1

1.- APPLICATION

1. This General Order applies to each employee as defined in subsection 7(1) of the Industrial Relations Act 1979 (WA) throughout the State of Western Australia.

2. Where an industrial instrument contains a term provided for in this General Order that is more beneficial to an employee, then the more beneficial term shall apply. Otherwise, where there is a conflict between the terms of an industrial instrument and this General Order, the terms of this General Order shall apply.

3. This General Order shall operate on and from the date this General Order issues and shall continue indefinitely unless later rescinded by the Commission.

2.- DEFINITIONS

4. In this General Order:

a. The term defined public holiday means a day defined or recognised as a public holiday within an industrial instrument.

b. The term industrial instrument means an award, an industrial agreement, an enterprise order, and an employer-employee agreement under the Industrial Relations Act 1979 (WA).

c. The term special public holiday means any special day appointed by proclamation under section 7 of the Public and Bank Holidays Act 1972 (WA) to be a public holiday.

3.- PUBLIC HOLIDAYS

5. Where an employee is covered by an industrial instrument that provides for a higher rate of pay (for example: overtime, penalty rates, or allowances) for working on a defined public holiday, that higher rate of pay shall also apply to time worked by the employee on any special public holiday.