An attempt by the Shop Assistant’s union to set a new precedent on public holiday penalty rates has been rejected by the Industrial Court.
The Adelaide branch of the Shop Distributive and Allied Employees Association (SDA) ran a test case recently using one of its members in a pay claim against retailer Harris Scarfe.
Harris Scarfe was represented by interstate legal counsel from the National Retailers Association.
The claim, by Benjamin Roe, sought payment at public holiday penalty rates for work done on Australia Day this year (Saturday January 26).
Roe, a casual employee, worked on the Saturday, but Harris Scarfe was closed on the gazetted substitute public holiday, Monday, January 28.
On days where the public holiday falls on a weekend and a substitute day is gazetted, retailers pay casual staff their rate for the day and public holiday penalty rates (double time) on the substitute day.
Roes, who had worked for Harris Scarfe since 2006, claimed he should have received double time for the Saturday.
When asked in the Industrial Court why he hadn’t raised similar concerns in 2008 when a similar substitute day arrangement occurred, he said that “since he started to take a more active role in the union this has prompted him to make a claim”.
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In its submissions to the court, the SDA sought to test the Harris Scarfe Agreement in the context of the Holidays Act passed in 2010 to extend shop trading hours in South Australia.
The SDA cited a clause in the agreement that it said was intended to “ensure that employees who worked on an actual public holiday were not disadvantaged by the government substituting the public holiday to the following Monday”.
“If the public holiday is only recognised on the substitute day and not the actual day this could lead to the anomalous situation whereby an employee who works on the actual public holiday does so without any additional compensation, whereas an employee who works a few days later on the substitute day receives additional compensation,” it submitted.
On Roe’s case, he worked on the Saturday, but as a casual is never rostered to work on a Monday.
Harris Scarfe took the view that the penalties anomaly applied only to permanent staff.
Counsel for the retailer, Corrina Dowling from the National Retailers Association, said it had never been made aware of any issue with that interpretation nor had that interpretation been challenged before.
She said all casual employees working on public holidays are paid in accordance with the rate specified in their workplace agreement.
Industrial Court magistrate Michael Ardlie found in favour of Harris Scarfe.
Retailers had another win this week when the Fair Work Commission ruled that employers can pay their staff with time-in-lieu for working on a public holiday.
The federal body’s decision came in a case brought by the National Retailers Association and the Hair and Beauty Industry Association.
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The application was opposed by unions including the SDA.
The commission ruled employers can pay time in lieu, as long as the employee grants consent and wages are still paid out with extra time-and-a-half. The time in lieu must be taken four weeks after the public holiday occurs, or it can be paid out.
Deputy president Greg Smith said the clause is appropriate to insert in the relevant awards.
In doing so, he said: “The safety net for an employee does not alter unless there is agreement to do so by substituting another form of compensation.
“To access the alternative there must be mutual consent and employees cannot be pressured into agreeing as that would not constitute genuine consent.”
Both the National Retail Association and Restaurant and Catering Australia were contacted but neither was available prior to publication.
However, NRA chief executive Trevor Evans told The Australian the decision was welcome.
“We’re very proud of the win and we think it’s a very sensible decision that should help both businesses and workers work together on public holidays to better serve the needs of their customers,” he said.
Evans also emphasised the arrangement can only happen if there is mutual consent.
“Employees cannot be pressured into agreeing as that would not constitute genuine consent.”
While the decision has been made independent of the government, business owners are hopeful similar decisions will be made during the Coalition’s rule.
– additional reporting by Patrick Stafford
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