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These are EMA’s pick of the most interesting and relevant cases reported in the last month.  Please note that these are summaries only, and should not be relied upon in place of the full judgment.  If you would like clarification on any of the judgments, or wish to know how a particular case may apply to a matter you currently have, please contact one of our consultants.


4 yearly review of modern awards—Plain language re-drafting[2019] FWCFB 5145 (25 July 2019)

Industry: All industries

Type: Review of modern awards; application of substitute public holidays

Summary: The Full Bench of the Fair Work Commission has recently looked at the public holidays clauses in modern awards and noted that a number of awards allow for substitute holidays where the employer has reached agreement with a majority of employees.

The Fair Work Act 2009 (Cth) (“FW Act”) allows for a substitute holiday where an employer and an individual employee agree.

Outcome: The Full Bench held that modern award provisions that allow for substitute public holidays by agreement with a majority of employees, or by unilateral decision of the employer, are inconsistent with the FW Act and therefore of no effect.  The Full Bench intends to redraft these award provisions to ensure compliance with the FW Act.

Key notes: We recommend all employers review their current policies, practices, and (if applicable) enterprise agreements relating to substitute public holidays.  An employer cannot unilaterally substitute a  public holiday with an individual employee, nor enforce a majority agreement on an individual – each individual employee must agree to the substitution.


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