FWC resolves a dispute between Woolies and the Union over public holiday pay

Employees at the Woolworths Brisbane Liquor Distribution Centre have had the Fair Work Commission set out the interpretation of the public holiday provision in the Woolworths Limited Brisbane Liquor Distribution Centre Enterprise Agreement (the Agreement) after the National Union of Workers made an application to the FWC to resolve the dispute.

Facts of the dispute

The question centered around whether night shift workers, who commenced their shift at 9.00pm on a public holiday and finished their shift the following morning, which is not a public holiday, at 5.00am, would be entitled to holiday pay loading and to be absent from work.

Woolworths argued that as the Agreement was silent on the term ‘public holiday shifts’ that the National Employment Standards should be applied. The National Employment Standards state that the shift will only be treated as a public holiday shift if the majority of working hours fall on the public holiday. In this case the majority of the hours did not fall on the public holiday and as such it was argued that the hours worked should not be paid with the public holiday loading. This would also mean that employees would not be entitled to be absent from the shift as they would have if it were considered a public holiday shift.

The National Workers Union put forward the argument that as the clause only states that workers can be absent for the public holiday that this would apply to night shift workers also. The Union argued that this would apply to the entire shift, as the start of the shift falls on a public holiday. This therefore meant the entire shift should be considered a voluntary public holiday shift, employees working would be entitled to the public holiday loading. This also means that employees are entitled to be absent for the shift if they choose and still be paid (at the regular rate).

Decision

The FWC Deputy President Colman did not agree with either the Union or the Employer in this case and determined that neither of the above interpretations were correct. The Deputy President found that all employees, which would include night shift employees, are entitled to receive a day off with pay, this means a calendar day. Any hours worked on the public holiday were voluntary and should be paid at public holiday pay.

The Fair Work Commission went on to clarify that this also means that night shift employees were entitled to be absent for the first three hours of their shift while being paid the regular rate of pay.

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