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

COMMISSION IN COURT SESSION

CITATION : 2023 WAIRC 00269

DELIVERED : Friday, 12 May 2023

FILE NO. : CICS 3 OF 2023

Applicant

AND

Minister for Industrial Relations, Chamber of Commerce and Industry of Western Australia (Inc), Australian Resources and Energy Employer Association

Respondents

Catchwords : Industrial law (WA) - Application for General Order - Provisions in industrial instruments for days declared special public holidays  - Payment for working on special public holidays - General Order issued

Legislation : Bank Holidays Act 1970 s 5

Fair Work Act 2009 (Cth) s 115(1)

Industrial Relations Act 1979 (WA) s 6, s 26(1) s 50, s 80BB

Industrial Relations Legislation Amendment Act 2021 (WA) s 120

Minimum Conditions of Employment Act 1993 (WA) s 30

Public and Bank Holidays Act 1972 (WA) s 7  

Result : General Order issued

Representation:

Mr C Fogliani of counsel on behalf of UnionsWA Incorporated

Mr R Andretich of counsel on behalf of the Hon. Minister for Industrial Relations

No appearance on behalf of Chamber Of Commerce and Industry Of Western Australia (Inc)

No appearance on behalf of Australian Resources and Energy Employer Association

Solicitors:

UnionsWA :  Fogliani Lawyers

Minister for

Industrial Relations :  State Solicitor’s Office

Case(s) referred to in reasons:

Amalgamated Engineering Union of Workers of Western Australia and Others v Forwood Down W.A. Ltd. and Others (1971) 51 WAIG 1205

Australian Workers’ Union, Westralian Branch, Industrial Union of Workers ; The West Australian Shop Assistants and Warehouse Employees’ Industrial Union of Workers, Perth and Others v Sundry Employers (1946) 26 WAIG 354

Re Electricians (State) Award (No 3) (1970) AR (NSW) 305

Reasons for Decision

COMMISSION IN COURT SESSION:

The application

1         This application seeks 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 is in relation to special public holidays appointed by proclamation under s 7 of the Public and Bank Holidays Act 1972 (WA). 

2         The application arises 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 seeks 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 make no provision for such payments for working on such a special public holiday, applying throughout the State.

3         The application, as amended by order of the Commission in Court Session dated 2 May 2023 ([2023] WAIRC 00248) is in the following terms:

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.

4         The terms of the proposed General Order make it clear in par 4(c), defining ‘special public holiday’, that it is limited to a day proclaimed to be such, in accordance with s 7 of the PBH Act and no other day.  Furthermore, by proposed par 5, it is intended that penalty rates, normally applying in circumstances where an employee works on a public holiday as prescribed by an industrial instrument, will also be payable where an employee is required to work on a special public holiday, as proclaimed.  In this sense, the application seeks to do no more than align payment for working on such a public holiday, with the general industrial principle that employees working outside of ordinary hours of work, including on holidays, are entitled to penalty rates of pay for doing so.

5         The application was the subject of a Notice published in the Western Australian Industrial Gazette, and on the Commission’s website on 22 February 2023, giving notice of the proceedings and inviting any written submissions to be filed with the Commission’s Registry by 2 May 2023: [2023] WAIRC 00064; (2023) 103 WAIG 99. A written submission was received from the Western Australian Local Government Association. 

6         The application is unopposed.

Some history

7         In 1946, the Court of Arbitration of Western Australia established a minimum standard for all Western Australian employees in private industry of ten public holidays each year: Australian Workers’ Union, Westralian Branch, Industrial Union of Workers; The West Australian Shop Assistants and Warehouse Employees’ Industrial Union of Workers, Perth and Others v Sundry Employers (1946) 26 WAIG 354 at 355.  Which of these ten days were designated as public holidays was left to be specified by individual awards, although convention and common law meant that New Year’s Day, Good Friday, Easter Eve, Easter Monday, Christmas Day (25 December) and 26 December were universally recognised.

8         Issues regarding the entitlement to payment when a public holiday is observed, payment when a public holiday is worked, and taking days off work in lieu of public holidays, were also dealt with by the provisions of individual awards.

9         As at 1971, s 5 of the then Bank Holidays Act 1970 allowed the Governor to appoint, by proclamation, ‘special days’ to be observed as bank holidays throughout the State or in any city, town or district. It had become common for communities in country districts to request holidays or half day holidays to be appointed for local occasions such as agricultural shows, race meetings and commemorative events: see Second Reading Speech Hansard 19 September 1972 p 3397.

10      Also in 1971, several unions applied to the Industrial Commission to amend the Metal Trades (General) Award and eight other private sector awards to add to the existing ten holidays ‘any other day which may, from time to time, be gazetted as a public holiday.’: Amalgamated Engineering Union of Workers of Western Australia and Others v Forwood Down W.A. Ltd. and Others (1971) 51 WAIG 1205.  The Industrial Commission refused the claim.  In doing so, Cort C said at 1206:

Sufficient evidence was put with regard to disputes on earlier holiday provisions to cause doubt on the wisdom of granting a provision so worded but, in any event, it was not shown that ten days without loss of pay is an unreasonable provision for workers covered by an award of this Commission.

11      The Industrial Commission did, however, grant a rate of pay of double time and a half for time worked on the then recognised public holidays in those awards the subject of the unions’ application: see 1207. This followed the New South Wales Industrial Commission decision in  Re Electricians (State) Award (No 3) (1970) AR (NSW) 305.

12      When the Public and Bank Holidays Bill was introduced shortly after the decision of the Industrial Commission, it had as its main purpose the rationalising of the administration of all public and bank holidays.  As the then Minister for Labour, Mr Taylor, explained, while the Industrial Commission’s 1971 decision made changes to several awards to standardise the entitlement to a day off work on ten public holidays without loss of pay, the decision applied only to workers covered by the relevant State awards, creating a disparity between employees who were award covered, and those who were not. The PBH Act was designed to enshrine the ten public holidays into legislation, so that all employees at least have the same standard ten public holidays apply to them: Second Reading Speech Hansard 8 August 1972.

13      As well as listing the ten public holidays, the PBH Act contained a further provision to allow the Governor to make a proclamation from time to time, to appoint a special day, specified in the proclamation, to be a public holiday throughout the State or within a district.  The Minister for Labour’s specific example of the application of special public holidays was for a ‘Royal Visit’.

14      Despite the development of some general principles and standards in relation to public holidays, uniformity remained elusive. The Minimum Conditions of Employment Act 1993 (WA) provided an entitlement for all employees other than casual employees, who are not required to work on a day ‘solely because that day is a public holiday’ to be paid as if the employee worked on that day: s 30.  The term ‘Public Holiday’ is defined in the MCE Act to mean the days listed in Schedule 1, being 11 named public holidays (Easter Sunday having been recently added to the list: Industrial Relations Legislation Amendment Act 2021, s 120) as well as ‘any special day appointed by proclamation under the Public and Bank Holidays Act 1972 s 7 to be a public holiday.’  However, the MCE Act is silent about payment when an employee works on a public holiday. For State system employees, such entitlements were left to industrial instruments.

Contentions

15      In its submissions, UnionsWA identified a range of different public holiday and overtime clauses in awards of the Commission, which do not entitle an employee working on a special public holiday, proclaimed to apply throughout the State, to higher rates of pay.  It was submitted that the granting of the application for a General Order, would remedy this situation.  In making an order in the terms sought, UnionsWA contended that the Commission would be acting consistent with the objects of the Act in s 6, and in accordance with equity, good conscience and the substantial merits of the case under s 26(1)(a) of the Act. It would also be in the interests of affected employees to ensure that they are appropriately remunerated when required to work on special public holidays, which, in turn, is in the interests of the community as a whole: s 26(1)(c) Act.

16      Whilst no evidence has been led in support of the application, it was submitted by UnionsWA that in the absence of any objection to the making of a General Order, evidence is unnecessary, as the gap in existing awards and industrial agreements is self-evident. In the absence of any opposition to the application from employers in the State industrial relations system, UnionsWA submitted that there is nothing before the Commission which would suggest that granting the application would have a detrimental economic impact for the purposes of s 26(1)(d) of the Act, especially given the relatively rare circumstances in which special public holiday proclamations are made.  There have been only two such proclamations over the last 15 years or so, the first made in June 2010 (cancelled in December 2010 with a substitute day declared) and the second made for the National Day of Mourning.

17      UnionsWA also submitted that the effect of the General Order, if made, would not create an entitlement where an award presently does not provide for payment of higher rates of pay on public holidays. The application only seeks to extend an existing obligation to pay higher rates of pay under awards for working on public holidays, to special public holidays as defined.

18      Submissions were made on behalf of the Minister, who supports the application, as amended.  One issue raised by the Minister was that whilst reference was made in the application to the Farm Employees Award 1985 as an award affected by the application, that award does not, somewhat uniquely, contain a clause providing for penalty rates being payable on public holidays. Accordingly, it would not be covered by the General Order.

19      In addition to the submissions from UnionsWA and the Minister, the WALGA submission referred to the application for the General Order and noted that it was disseminated widely amongst all WALGA members for their comment.  Members of WALGA were also informed that they were able to make an individual submission in relation to the application, in response to the Notice of these proceedings published by the Registrar.

20      The WALGA written submission also outlined the relevant provisions of three local government awards providing for public holiday and public holiday entitlements. Two State awards contain provisions for public holidays and payment for working on them, with only one providing for payment on proclaimed special public holidays.  A third example cited is a former national system award, now a State instrument under s 80BB of the Act, which, by s 115(1) of the Fair Work Act 2009 (Cth), recognised the National Day of Mourning as a public holiday.  This award provides for payment for working on such days.  These local government awards are an illustration of inconsistencies that occur in relation to this issue. 

21      WALGA confirmed that none of its members had indicated opposition to the application.  Two local governments responded to the effect that it was current practice for payment of penalty rates where an employee works on a special public holiday in any event.

Consideration

22      The declaration of a National Day of Mourning for 22 September 2022 and the proclamation of a special public holiday throughout the State by the Governor under s 7 of the PBH Act  revealed the existence of a lacuna in awards of the Commission.  Whilst most awards provide for prescribed public holidays, and that working on such prescribed public holidays attracts a penalty rate of pay, usually of double time and one half, there is generally no such entitlement to penalty rates when working on a special public holiday proclaimed to apply throughout the State. 

23      Given the very infrequent occurrence of such proclamations being made, we are satisfied that, in accordance with ss 6 and 26(1) of the Act, the making of such a General Order would be consistent with the objects of the Act and with the equity, good conscience and substantial merits of the case.  We are also satisfied that 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.

24      Accordingly, we are satisfied that a General Order ought to be made. This will extend 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.

25      A minute of proposed order now issues.