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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-11-13 Daily Xml
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TRADING HOURS

The Hon. R.I. LUCAS (15:20): I seek leave to make a brief explanation before asking the Minister for Industrial Relations a question on the subject of the shop trading and public holidays legislation.

Leave granted.

The Hon. R.I. LUCAS: There was a recent decision of the Fair Work Ombudsman which in part outlined a number of decisions. One outlined the case of Stephanie, who was a full-time cook at a registered club at Adelaide with ordinary hours of work from 2pm to 10pm. In this case, Stephanie had a rostered day off on 24 December. The Fair Work Ombudsman has ruled that even though Stephanie has a rostered day off on that day she will be entitled to an extra day's pay, an alternative day off within 28 days or an additional day of annual leave. In the case where Stephanie is a full-time cook at a restaurant in Adelaide with ordinary hours from 2pm to 10pm with a rostered day off, again, the Fair Work Ombudsman has ruled that Stephanie is entitled to an extra full day's pay, an alternative day off within 28 days or an additional day of annual leave.

In the case of Matthew, a cook at a roadhouse in Adelaide, who works from 2pm until 10pm on New Year's Eve, the Fair Work Ombudsman has ruled that Matthew is entitled to a full day off in lieu or a day added to the annual leave entitlement under clause 28(1)(c) of the restaurant award. There are a number of other similar rulings by the Fair Work Ombudsman in that particular decision.

When these issues were raised during the debate on the legislation in the last year by Minter Ellison, the Motor Trade Association, the Printing Industry Association and a number of other stakeholders, and the minister was explicitly warned of these consequences of the legislation, the minister in part responded as follows:

Recently, through the media and other sources, I have also heard all sorts of scaremongering about the unintended consequences that could be created by part-day public holidays. This has now been extended to how many annual leave entitlements might be affected.

He went on to say:

The commonwealth Fair Work Act clearly contemplates part-day public holidays under the state and territory public holiday laws. The supposed loopholes being raised are mischievous.

In summary, having heard the warnings by all of those stakeholders and Minter Ellison, the minister dismissed them as scaremongering and mischievous. My question to the minister is: does he now accept that he was warned about these consequences of the government bill during the debate on the bill and that he misled this parliament and the community by dismissing the warnings as mischievous and scaremongering, and, if not, can he explain his position in relation to the statements he made during debate on these issues in the bill?

The Hon. R.P. WORTLEY (Minister for Industrial Relations, Minister for State/Local Government Relations) (15:23): I thank the honourable member for his important question. The government introduced part-day public holidays on the evenings of Christmas Eve and New Year's Eve to recognise the importance of these special times of year for many of our citizens: nurses, police, carers, firefighters and people who work serving us our meals at restaurants and in hotels. We did this because we believe strongly that by declaring this as a part public holiday, under the national employment standards, people are entitled to refuse to work.

So, if they wanted to spend time with their families on Christmas Eve, wrapping presents, putting up the Christmas tree and putting toys under the tree, they could decide to do that legally, and they could do the same on New Year's Eve, when everyone is out celebrating the end of a hard year and the beginning of a new one. But to make sure that employers have enough people to provide adequate labour, public holiday penalty rates would come in enticing people who did not want the time or who needed the money to work appropriately. This is good public policy. It is very well accepted out there amongst the people of South Australia, and we think it is a great piece of legislation.

Recent media coverage related to advice from the Fair Work Ombudsman has created some hysteria over the interaction of South Australia's part-day public holidays with certain industrial instruments. However, it should be pointed out that the advice of the Fair Work Ombudsman in relation to public holiday provisions in these instruments highlights anomalies and shortcomings with these awards that already exist for all public holidays and not just part public holidays.

For example, the hospitality industry raises the issue of some workers being entitled to a full day off in lieu or an additional day's leave for working on a public holiday, even when only a small portion of that shift occurs on a public holiday. The situation is not arising merely because of the creation of part public holidays. This provision in the hospitality award and the restaurant award is relevant to all public holidays. I am aware that several modern awards have favourable outcomes for some employees when their shift straddles a public holiday whether that public holiday commences at 12 midnight or at 7pm as in the case of the part public holidays, so the Fair Work Ombudsman has only highlighted to industry groups aspects of their award that exist already in relation to public holidays and shift workers.

It is important to note that the hospitality industry is one of the highest employers of casual labour in the state and that the public holiday entitlement scenarios advised by the Fair Work Ombudsman only relate to a small number of workers on annualised salaries and full-time and part-time employees. Fair Work Australia commenced a statutory review of all modern awards under the national system earlier this year and this review is ongoing, with some of the many applications to vary awards still being considered.

The part-day public holidays became law on 2 April 2012 and I would be surprised if those industry groups that have issues with public holiday provisions in modern awards have not made an application to Fair Work Australia to deal with the issues of concern. I intend to lodge a submission to Fair Work Australia to also request it look at the modern award provisions in the context of the new part-day public holidays with a view to clarifying any ambiguity resulting from their creation.

It is also worth noting that the Holidays Act 1910 requires a review of the impact of the introduction of part-day public holidays on government, business and the community, and I am pleased to inform the house that the South Australian Centre for Economic Studies, a joint research unit of Adelaide University and Flinders University, has been appointed to conduct this review. This independent review will see consultation with all who have an interest in the part-day public holidays, but I am sure the final report will fully examine the impacts, both positive and negative.

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