Christmas Can Come Twice
The federal court has played Santa Clause to some WA shop assistants because of major confusion over public holiday entitlements. In a ruling over the proper interpretation of a Woolworths enterprise agreement, the court found that the interaction of the Fair Work Act (and the public holidays National Employment Standard), the West Australian Public Holidays Act and Woolies EBA meant that employees got Christmas Day and the substituted public holiday the following week.
Woolies argued, understandably, that it should be one or the other, not both, but the judge disagreed. He said that it was not something the court could fix – the legislation said what it said – and that it was a “matter of policy that may be addressed to the legislators or an issue the parties may possibly deal with by agreement”.
In this case, employees who worked on both Christmas Day and the substituted holiday were paid high penalties on both days, effectively getting an additional public holiday which their workmates who did not work on both days did not receive. This double-dipping has been argued many times and was for a while settled under previous legislative regimes. But the NES has changed the landscape again.
What this case demonstrates is how important it is to make it very clear in EBAs what happens with public holidays. A little bit of extra care taken in developing a comprehensive public holidays clause could save a lot of money down the track for businesses who need to open on public holidays.