No end to Christmas public holiday confusion as Fair Work rejects proposal to harmonise penalty rate laws

Employers will be forced to “double dip” and award penalty rates for multiple public holidays this Christmas season, after Fair Work Australia ruled against a proposal from the Australian Industry Group that would harmonise the public holiday dates across all states and territories.

The decision means employees in Victoria and South Australia who are forced to work on Christmas Day will go without extra pay, while employers in some other states will be forced to pay penalty rates up to six times for three major public holidays.

The decision means the chaos over public holidays during the Christmas and New Year period will continue, with all states and territories deciding on their own whether to award additional or substitute holidays.

Fair Work Australia said in its ruling that it would remove a public holiday clause from the Manufacturing Modern Award that the AIG says would prevent “double dipping”. Australian Industry Group chief executive Heather Ridout said the decision was “regrettable”.

“The decision will increase the costs for many employers who need to operate over the Christmas/New Year period”.

The AIG proposal argued that penalty rates should be paid on three holidays – Christmas Day, Boxing Day and New Year’s Day. Instead, because Christmas Day and Boxing Day fall on weekends and many states are awarding substitute or additional public holidays, employers will be forced to “double dip” and pay twice or three times as many penalty rates.

“The effect of the FWA ruling means that public holiday penalties will be payable on all days which have been proclaimed as public holidays in the relevant State or Territory,” Ridout said.

While Ridout said the AIG was pleased Fair Work struck down a series of claims from the unions to award higher penalties for work on December 25, she said the bigger issue is that employers still remain confused for the duration of the holiday season.

“The FWA decision increases the importance of State and Territory Governments agreeing on a consistent and fair approach when proclaiming public holidays. It is extremely unfortunate that so many different approaches have been taken this year creating widespread confusion and uncertainty,” Ridout said.

The decision comes after Greens Federal MP Adam Bandt introduced a motion into the House of Representatives earlier this week calling for Victoria and South Australia to award penalty rates on Christmas and Boxing Day.

With the public holiday chaos set to continue, here’s a handy guide to keep both employers and employees informed:

New South Wales and Queensland

Christmas Day on Saturday, December 25 is classified as a public holiday. A substitute holiday for Boxing Day will be held on Monday December 27, while an additional holiday for Christmas Day will be held on Tuesday, December 28.

Saturday, January 1 is also declared a public holiday, while an additional holiday will also be held on Monday, January 3.

Australian Capital Territory

Christmas Day is now classified as a public holiday, but Boxing Day is not. A substitute day for Christmas will be held on Monday, December 27, while another will be held for Boxing Day on Tuesday, December 28.

New Year’s Day will not be classified as a public holiday either, with a substitute holiday to be held on Monday, January 3.

Victoria

Christmas Day on Saturday, December 25, is not a public a holiday. A substitute public holiday will be held on Monday, December 27.

Boxing Day on Sunday December 26 is declared a public holiday, and an additional public holiday will be held on Tuesday, December 28.

New Year’s Day will be declared a public holiday on Saturday, January 1, and an additional holiday will also be held on Monday, January 3.

South Australia

Christmas Day on Saturday, December 25 is not a public holiday, and a substitute public holiday will be held on Monday, December 27.

An additional holiday for Proclamation Day will be held on Tuesday, December 28.

New Year’s Day will not be declared a public holiday on Saturday, January 1, with a substitute public holiday to be held on Monday, January 3.

Western Australia

Christmas Day on Saturday, December 25, and Boxing Day on Sunday, December 26, are both public holidays. But additional public holidays will be provided for both on Monday, December 27 and Tuesday December 28 respectively.

An additional holiday for New Year’s Day will be held on Monday, January 3.

Tasmania and Northern Territory

Christmas Day and Boxing Day are not classified as public holidays, with substitute holidays to be held on Monday, December 27 and Tuesday, December 28.

New Year’s Day will not be classified as a public holiday either, with a substitute holiday to be held on Monday, January 3.

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