Shop, Distributive and Allied Employees' Association v Woolworths Ltd [2012] FCA 540 | Case summary

clause 7 of the agreement 12 Clause 7 of the agreement (as set out in the "Green book" version [2010] FWAA 3820, produced at the hearing by counsel for the union) provides as follows: 7. PUBLIC HOLIDAYS 7.1 HOLIDAYS Full Time and Part Time employees shall be entitled to a day off, without loss of pay, where the employee would ordinarily be rostered to work on the following days: * New Years Day * Anzac Day * Australia Day * Labour Day (8 hour day) or MayDay (in Northern Territory) * Good Friday * Queen's Birthday (Sovereign's Birthday in WA) * Easter Saturday * Christmas Day (except Tasmania) * Easter Monday * Boxing Day 7.1.1 The following days shall be taken in addition to the days named above, or in lieu of where stated: STATE PUBLIC HOLIDAY Victoria Melbourne Cup Day provided that where a local day is proclaimed or gazetted in a locality outside the Metropolitan Area and Melbourne Cup Day is not proclaimed or gazetted in the locality then the local day shall be taken as a full day public holiday in lieu of Melbourne Cup Day. Union Picnic Day shall be an additional public holiday in Victoria for meat employees on the third Monday in January. Western Australia Foundation Day Northern Territory Show Day as regionally observed and Picnic Day South Australia Third Monday in May (Adelaide Cup), Picnic Day Port Pirie, Picnic Day Broken Hill (on same day as Adelaide Cup Day), Picnic Day Broken Hill Meat Unit employees (first Monday in March), Butcher's Picnic Day for Meat Unit employees who were employed as at 1 June 2000 under the Woolworths SA Pty Ltd Meat Certified Agreement (first Monday in March). ACT Canberra Day and in addition, Family & Community Day to be observed on the first Tuesday in November or other day as nominated by the ACT Government as a community holiday. NSW Picnic Day (shall be the first Tuesday in November). Queensland Exhibition Day or the appropriate Regional Show day Tasmania Show Day (as defined), Recreation Day in the North and Regatta Day in the South. 7.2 HOLIDAYS IN LIEU 7.2.1 When Christmas Day is a Saturday or Sunday, a holiday in lieu thereof shall be observed on 27 December. 7.2.2 When Boxing Day is a Saturday or Sunday, a holiday in lieu thereof shall be observed on 28 December. 7.2.3 When New Year's Day or Australia Day is a Saturday or a Sunday, a holiday in lieu thereof shall be observed on the next Monday. 7.3 ADDITIONAL HOLIDAYS Full-time and part-time employees shall be entitled without loss of pay to an additional public holiday or half day within the State, Territory or Locality, when such public holiday or half day public holiday is legislated, proclaimed or gazetted other than on a day set out in subclauses 7.1 or 7.2, and is to be observed generally by persons through the State, Territory or Locality. Provided that, in NSW (excluding the County of Yancowinna) and the ACT, such additional public holiday or half day public holiday shall be treated as additional paid time off or pay in lieu, but work performed on those days or half days shall not attract public holiday penalty rates (although in other States and Territories any work on such a day or half day will be paid in accordance with subclause 7.10). 7.4 SUBSTITUTED DAYS Where a store opens for trade on an actual public holiday which has had the substitution provision of subclause 7.2 applied, the following shall apply: 7.4.1 If a full-time or part-time employee is ordinarily rostered to work on the actual public holiday and the substituted day, then that employee shall elect which day shall be the public holiday and receive the standard public holiday benefits on that day. The other day shall then be a normal rostered day subject to paragraph 7.4.4 below. If the employee elects for the Public Holiday under this Agreement to be on a day which is not a public holiday under the Fair Work Act 2009 (or in 2009, the Workplace Relations Act 1996) then the employee will also be regarded as having agreed to substitute the holiday under the legislation to the day so elected. 7.4.2 If a weekly employee is rostered to work on the actual public holiday and not the substituted day, the employee shall receive the standard public holiday benefits on the actual day. 7.4.3 If a full time or part time employee is rostered to work on the substituted day and not the actual Public Holiday, the employee shall receive the public holiday benefits on the substituted day. 7.4.4 In the case of Christmas Day where substitution occurs, work on the 25th December will attract an additional loading of half a normal day's wage for a full day's work in addition to the Saturday/Sunday rate and the employee will also be entitled to the benefits of the substituted public holiday. 7.4.5 Casual employees employed on the actual day of the prescribed holiday shall be paid at the normal rate for the day and be paid the relevant holiday rate for the substituted day. 7.4.6 'Actual public holiday' means the day that would otherwise be a public holiday if substitution as provided in subclause 7.2 had not occurred. 7.5 PAYMENT FOR HOLIDAYS NOT TRADED Where a store does not open for trade on a public holiday and an employee would have been rostered to work on such a day but does not work, the employee shall be entitled: 7.5.1 in NSW/ACT, Queensland and SA/NT, to payment for the day based upon their ordinary single hourly rate of pay for the hours normally rostered to work; and 7.5.2 in Victoria, Tasmania and Western Australia, to the day without loss of pay, inclusive of any applicable penalties the employee would have received. Provided that an employee may elect to work with the agreement of the employer and be paid at the rate prescribed by subclause 7.10. 7.6 HOLIDAYS TRADED Where a store opens for trade on a public holiday, employees who would normally be rostered to work may volunteer to work the day or part thereof and shall be paid the appropriate penalty for time so worked. Provided that when an employee chooses not to work they shall be paid in accordance with subclause 7.5. 7.7 HOLIDAYS ON A NON-WORKING DAY OR A ROSTERED DAY OFF 7.7.1 A full-time employee whose non-working day falls on a public holiday prescribed under subclauses 7.1, 7.2, or 7.3 (but not 7.10.3) and a part-time employee who works an average of 5 shifts per week whose non-working day falls on a public holiday prescribed under 7.1, 7.2, or 7.3 (but not 7.10.3) shall receive by mutual agreement either: - another day off in lieu to be taken either within 28 days after the holiday falls or during the week prior to the holiday; or - the addition of an equivalent day's pay; or - 1 extra day added to annual leave. Provided that the above shall not apply to Anzac Day or Easter Saturday for NSW/ACT and SA/NT. Provided that the above shall not apply to Anzac Day for Victoria or Tasmania. Provided that the above will not apply to additional holidays legislated, proclaimed or gazetted by a State or Territory as provided in clause 7.10.3. 7.7.2 A full time employee whose RDO falls on a public holiday shall receive by mutual agreement either: - another day off in lieu to be taken either within 28 days after the holiday falls or during the week prior to the holiday; or - the addition of an equivalent day's pay; or - 1 extra day added to annual leave. 7.7.3 A full-time or part-time employee shall be entitled to the above provisions where the employee works an alternating roster and the public holiday falls on a day on which the employee works in any week of their roster cycle. For the purpose of this subclause for full-time employees, 'day' shall mean 8 hours. In respect of part-time employees 'day' shall mean the average number of contract hours rostered per day for the employee prior to the public holiday in the 4 week cycle. 7.8 ABSENCE PRIOR TO / OR FOLLOWING A HOLIDAY An employee who fails to attend for a rostered shift on the day before or the day after any public holiday shall provide to the Company documentation in accordance with the relevant leave provision of this Agreement. 7.9 WORK ON A PUBLIC DAY Work on a public holiday is voluntary for all employees. An employee who elects to work shall be paid at the rate prescribed by subclause 7.10. 7.10 RATE OF PAY 7.10.1 Work done on any public holiday prescribed in subclause 7.1 and 7.2 by a full-time or part-time employee shall be paid at the rate of 250% with a minimum payment as for 3 hours work. 7.10.2 Work done on any public holiday prescribed in subclause 7.1 and 7.2 by a casual employee shall be paid at the rate of 270% with a minimum payment as for 3 hours work. 7.10.3 Work done by an employee on any day which the Company is required to recognise as a public holiday under the Fair Work Act 2009 in respect of that employee (not being a day otherwise designated as a public holiday for that employee under subclauses 7.1 to 7.4) will nevertheless be voluntary and paid at the rate set out in subclauses 7.10.1 and 7.10.2 where: (a) if Boxing Day falls on a Saturday, the additional holiday falls on either 26 December or 28 December; (b) if Christmas Day falls on a Saturday and Boxing Day falls on a Sunday, the additional holiday(s) falls between 25 December and 28 December (inclusive); (c) if Christmas Day falls on a Sunday, the additional holiday falls between 25 December and 27 December (inclusive); (d) if New Year's Day falls on a Saturday, the additional holiday falls on either 1 January or 3 January; or (e) if New Year's Day falls on a Sunday, the additional holiday falls on either 1 January or 2 January. If a full-time or part-time employee is rostered to work on such a day, and chooses not to work, then the employee will be paid in accordance with subclauses 7.5 and 7.6.

the first issue - Additional public holidays 14 The FW Act - which has national application and by virtue of s 109 of the Constitution prevails over inconsistent State laws - by Ch 2, Pt 2-2 prescribes National Employment Standards or NES, including with respect to "public holidays". 15 As provided for by s 43(1) of the FW Act, the main terms and conditions of employment are to be found in the NES, modern awards, enterprise agreements or workplace determinations. Section 44(1) provides that an employer must not contravene a provision of the NES. So far as the relationship between the NES and a modern award or enterprise agreement is concerned, s 55(1) provides that the award or agreement must not exclude the NES or any provision of the NES. 16 Section 55(2), however, enables a modern award or enterprise agreement to include any terms that the award or agreement is expressly permitted to include by a provision of Ch 2, Pt 2-2 or by regulations made for this purpose. Further, by s 55(4) a modern award or enterprise agreement may also include terms that are ancillary or incidental to the operation of an entitlement of an employee under the NES and terms that supplement the NES, but only to the extent that the effect of those terms is not "detrimental to an employee in any respect" when compared to the NES. Nonetheless an enterprise agreement may, by s 55(5), include terms that have the same or substantially the same effect as provisions of the NES, whether or not ancillary or supplementary terms are included. 17 By s 55(6), to avoid doubt, if a modern award or an enterprise agreement includes terms permitted, then to the extent that the terms give an employee an entitlement that is the same as an entitlement under the NES, those terms operate in parallel but not so as to give the employee a double benefit and the provisions of the NES applies a minimum standard to the award or agreement entitlement. An example is given in the note to s 55(6): If the award or agreement entitlement is to six weeks of paid annual leave per year, the provisions of the NES relating to the accrual and taking of paid annual leave will apply, as a minimum standard, to four weeks of that leave. 18 Finally, by s 55(7), to the extent that a term of a modern award or enterprise agreement is permitted by subs (4) or (5), the term does not contravene subs (1). But by s 56 a term of a modern award or enterprise agreement has no effect to the extent that it contravenes s 55. 19 Division 10 of Ch 2, Pt 2-2 of the FW Act (hereafter referred to as Div 10) deals with public holidays as follows: 114 Entitlement to be absent from employment on public holiday Employee entitled to be absent on public holiday (1) An employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes. Reasonable requests to work on public holidays (2) However, an employer may request an employee to work on a public holiday if the request is reasonable. (3) If an employer requests an employee to work on a public holiday, the employee may refuse the request if: (a) the request is not reasonable; or (b) the refusal is reasonable. (4) In determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account: (a) the nature of the employer's workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee; (b) the employee's personal circumstances, including family responsibilities; (c) whether the employee could reasonably expect that the employer might request work on the public holiday; (d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday; (e) the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork); (f) the amount of notice in advance of the public holiday given by the employer when making the request; (g) in relation to the refusal of a request - the amount of notice in advance of the public holiday given by the employee when refusing the request; (h) any other relevant matter. 115 Meaning of public holiday The public holidays (1) The following are public holidays: (a) each of these days: (i) 1 January (New Year's Day); (ii) 26 January (Australia Day); (iii) Good Friday; (iv) Easter Monday; (v) 25 April (Anzac Day); (vi) the Queen's birthday holiday (on the day on which it is celebrated in a State or Territory or a region of a State or Territory); (vii) 25 December (Christmas Day); (viii) 26 December (Boxing Day); (b) any other day, or part-day, declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of the State or Territory, as a public holiday, other than a day or part-day, or a kind of day or part-day, that is excluded by the regulations from counting as a public holiday. Substituted public holidays under State or Territory laws (2) If, under (or in accordance with a procedure under) a law of a State or Territory, a day or part-day is substituted for a day or part-day that would otherwise be a public holiday because of subsection (1), then the substituted day or part-day is the public holiday. Substituted public holidays under modern awards and enterprise agreements (3) A modern award or enterprise agreement may include terms providing for an employer and employee to agree on the substitution of a day or part-day for a day or part-day that would otherwise be a public holiday because of subsection (1) or (2). Substituted public holidays for award/agreement free employees (4) An employer and an award/agreement free employee may agree on the substitution of a day or part-day for a day or part-day that would otherwise be a public holiday because of subsection (1) or (2). Note: This Act does not exclude State and Territory laws that deal with the declaration, prescription or substitution of public holidays, but it does exclude State and Territory laws that relate to the rights and obligations of an employee or employer in relation to public holidays (see paragraph 27(2)(j)). 116 Payment for absence on public holiday If, in accordance with this Division, an employee is absent from his or her employment on a day or part-day that is a public holiday, the employer must pay the employee at the employee's base rate of pay for the employee's ordinary hours of work on the day or part-day. Note: If the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under this section. For example, the employee is not entitled to payment if the employee is a casual employee who is not rostered on for the public holiday, or is a part-time employee whose part-time hours do not include the day of the week on which the public holiday occurs. 20 By s 114(1) an employee "is entitled to be absent from his or her employment" on a day or part-day "that is a public holiday in the place where the employee is based for work purposes". This suggests that if an employee of an employer such as the respondent, Woolworths, which conducts a national business, is based for work purposes in Perth, Western Australia, they will have the s 114(1) entitlement to be absent from employment where a particular work day is a public holiday in Perth, Western Australia. 21 Despite the s 114(1) entitlement to be absent, s 114(2) provides that an employer may, however, request an employee to work on a public holiday if the request is reasonable. The employee may refuse the request under s 114(3) if the request is not reasonable or the refusal is reasonable. Section 114(4) sets out a range of factors that need to be taken into account in determining whether the request or refusal is reasonable. All of this leaves room for negotiation and discussion between an employee and employer about the exercise of the s 114(1) entitlement. 22 What is basic to the exercise of the s 114(1) entitlement is the identification of public holidays in the place where the employee is based for work. As s 114 infers, there may well be different public holiday arrangements in different workplaces in Australia. Indeed, on closer examination of Div 10, this is found to be the case. First, by s 115(1)(a) there are eight, what might be called "core", "public holidays" throughout Australia: (i) 1 January (New Year's Day); (ii) 26 January (Australia Day); (iii) Good Friday; (iv) Easter Monday; (v) 25 April (Anzac Day); (vi) the Queen's birthday holiday (on the day on which it is celebrated in a State or Territory or a region of a State or Territory); (vii) 25 December (Christmas Day); (viii) 26 December (Boxing Day); 23 Then, s 115(1)(b) recognises other public holidays according to the following formula: (b) any other day, or part-day, declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of the State or Territory, as a public holiday, other than a day or part-day, or a kind of day or part-day, that is excluded by the regulations from counting as a public holiday. 24 As a matter of legislative policy, it would appear the eight core days specified by s 115(1)(a) were able to be specified by the Commonwealth Parliament because they are common to the various States and Territories. While the Queen's birthday holiday is apparently common by that description, it varies as to the day upon which it is celebrated in different jurisdictions, thus suggesting the formula used in s 115(1)(a)(vi) for specifying that public holiday. 25 Section 115(1)(b), however, recognises that there are other days that are declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory or a region of a State or Territory, as public holidays. Where there are, then by s 115(1)(b) those days are also public holidays, save for any excluded by the regulations from counting as a public holiday. 26 This case brought by the applicant union principally concerns the proper interpretation or construction of s 115(1)(b) and the relevant Western Australian legislation creating public holidays in that State that answer the description in s 115(1)(b)). It also concerns the effect, if any, the enterprise agreement made by the parties and finally approved under the FW Act in 2010 has on the NES entitlements in respect of public holidays. 27 It is agreed that in Western Australia the legislation relevant to the issues raised is the WA PBH Act. By s 5 and Sch 2, Public and Bank Holidays, the WA PBH Act makes the following days "public holidays and bank holidays throughout the State": New Year's Day (1st January). Australia Day (26th January or, when that days falls on a Saturday or Sunday, the first Monday following the 26th January). Labour Day (Monday on or first Monday following the 1st March). Good Friday. Easter Monday. Anzac Day (25th April). Foundation Day [recently changed to Western Australia Day] (Monday on or first Monday following the 1st June). Celebration Day for the Anniversary of the Birthday of the Reigning Sovereign… Christmas Day (25th December). Boxing Day (26th December). When New Year's Day, Anzac Day, or Christmas Day falls on a Saturday or Sunday the next following Monday is also a public holiday and bank holiday. When Boxing Day falls on a Saturday the next following Monday is also a public holiday and bank holiday. When Boxing Day falls on a Sunday or Monday the next following Tuesday is also a public holiday and bank holiday. 28 Of particular importance, in this case, are the following public holidays specified by the Second Schedule: Christmas Day (25th December). Boxing Day (26th December). When New Year's Day, Anzac Day, or Christmas Day falls on a Saturday or Sunday the next following Monday is also a public holiday and bank holiday. When Boxing Day falls on a Saturday the next following Monday is also a public holiday and bank holiday. When Boxing Day falls on a Sunday or Monday the next following Tuesday is also a public holiday and bank holiday. 29 These latter provisions are important to the matters in issue because, in 2010, Christmas Day fell on a Saturday and Boxing Day fell on a Sunday. As a result of the operation of the WA PBH Act throughout Western Australia in 2010, the Monday following Christmas day, namely 27 December 2010, was "also a public holiday", as was the Tuesday following Boxing Day, namely 28 December 2010. 30 The WA PBH Act does not say that the Monday and Tuesday following Christmas Day and Boxing Day respectively in such circumstances are holidays "in lieu of" or "in substitution for" the Christmas Day and Boxing Day holidays. They are, in the language of the Second Schedule, "also" public and bank holidays. On the face of it, those public holidays in Western Australia are in addition to the public and bank holidays mentioned in the Second Schedule and are not in lieu of or in substitution for those other public holidays. 31 The words or formulae used to specify public and bank holidays in the WA PBH Act is different, in this regard, from those used in the very first Bank Holidays Act 1884 (WA) (the 1884 WA Act) passed in the colony of Western Australia. The 1884 WA Act was closely modelled on the Bank Holidays Act 1871 (UK) (the 1871 UK Act), although the terms of the Schedule were slightly different. By s 1 and the Schedule of the 1884 WA Act the following days were specified as bank holidays: Easter Eve, Easter Monday, Whit Monday, And the following days when week days : New Year's Day, The Birthday of the Sovereign, The Anniversary of the Foundation of the Colony (the first of June), Coronation Day, The Prince of Wales' Birthday, The twenty-sixth day of December. When any of the days above mentioned shall fall upon a Sunday, the next following Monday shall be a bank holiday. 32 No doubt in 1884, Sundays were sacrosanct and were always, in a practical sense, regarded as a holiday, particularly having regard to the Sunday Observance Act 1677 (UK) that formed part of the English legislation which was inherited as part of the law of the colony of Western Australia in 1829, but since repealed by the Sunday Observance Laws Amendment and Repeal Act 1997 (WA). Nonetheless, it is interesting to note that by the Schedule to the 1884 WA Act, whenever any of the days "above mentioned" should fall on a Sunday, the next following Monday "shall be a Bank Holiday". 33 It should be mentioned that while the 1871 UK Act and the 1884 WA Act employed the expression "bank holiday", it was generally understood at the time that the bank holidays proclaimed would be general public holidays. The Bill that led to the passing of the 1871 UK Act was promoted in the House of Commons by Sir John Lubbock, who campaigned for the rights of shop workers: see "Bank Holiday", Wikipedia 2012 (Wikipedia) http://en.wikipedia.org/wiki/Bank_holiday viewed 23 May 2012. In committee debate in the House of Lords on the second reading of the Bill (England, House of Lords, Debates (1871) Vol 206), the Marquess of Salisbury explained that a feeling was generally growing that work in England was quite hard enough, and that additional holidays would not be unwelcome to those to whom they were given, nor unpopular with the general community. Lord Overstone suggested that the appropriate expression should be "general" holiday. The Marquess of Salisbury concurred entirely with the views expressed, but, to ensure expedition in the passage of the Bill, proposed that no changes should be made to it, especially as the object would be met in any event. It was also recognised in this debate by Lord Overstone that there were in 1871, 54 days of the year - Sundays, Christmas Day and Good Friday - on which ordinary legal obligations with regard to business were suspended and that they were obviously religious holidays in character and purpose. He said the Bill supplemented those by four others, which might be deemed "purely secular" - being 26 December, in case Christmas Day fell on a Sunday, Easter Monday, Whit Monday and the first Monday in August. His Lordship recognised that this step was "in harmony with the social tendencies of the times, and the days had been judiciously selected, for three of them immediately followed religious holidays". 34 It is also interesting to note that by s 6 of the 1884 WA Act, the Governor in Council had the power to declare that a scheduled bank holiday should not in a particular year be a bank holiday "and to appoint such other day as to the Governor in Council may seem fit to be a Bank Holiday instead of such first mentioned day, and thereupon the day so specially appointed shall in such year be substituted for the day so appointed by this Act". It may be seen that by s 6 of the 1884 WA Act, there was a means to "substitute" the special day for a scheduled day. 35 The 1884 WA Act was followed by a number of pieces of Western Australian legislation dealing with bank holidays and related holidays up to and including the Bank Holidays Act 1970 (WA) (1970 WA Act). The 1970 WA Act had the long title of "AN ACT to Consolidate the Law relating to Bank Holidays". By s 3 and the Second Schedule, a number of days were to be "kept as close holidays in and by all banks in the State and such days are hereinafter in this Act called bank holidays". They included Foundation Day (on 26 January), Labour Day (on 1 March) and Anniversary of the Foundation of the Colony (on 1 June). In relation to these three bank holidays, the last paragraph of the Second Schedule provided: When any of the three lastmentioned bank holidays falls upon any day other than a Monday, the next following Monday thereafter shall be a bank holiday instead of such day. By this provision, and the use of the phrase "instead of", those particular bank holidays were to be substituted by another day in the circumstances described. 36 Soon after the passage of the 1970 WA Act, the current WA PBH Act was passed in 1972. Its long title is "AN ACT to rationalise Public and Bank Holidays and for purposes incidental thereto". While the WA PBH Act makes special provision concerning the days banks may operate, it is clear enough that the days specified by s 5 and the Second Schedule as "public and bank holidays" are secular holidays throughout the State of Western Australia. 37 Consequently, by virtue of the terms of the WA PBH Act: (1) Whenever New Year's Day or Christmas Day falls on a Saturday or Sunday, the next following Monday is also a public holiday, that is to say, in its own right as a secular holiday, and not as a substitute, religious or otherwise, for New Year's Day or Christmas Day. Parliament in Western Australia in its wisdom has by s 5 and the Second Schedule of the WA PBH Act created additional, secular public holidays in those particular circumstances; (2) Similarly, when Boxing Day - falls on a Saturday the next following Monday is also a public holiday in its own right as a secular holiday and is not a substitute for Boxing Day; falls on a Sunday or Monday the next following Tuesday is also a public holiday in its own right as a similar holiday and is not a substitute for Boxing Day; (3) In the case of New Year's Day, Christmas Day and Boxing Day, whether or not they fall on a Saturday or Sunday or, in the case of Boxing Day, on a Monday, they are public holidays and bank holidays in any event. 38 On the face of it, therefore, under Div 10, if a full-time employee working for Woolworths in Western Australia has a Monday to Friday pattern of work or roster and: (1) Christmas Day were to fall on a Saturday and Boxing Day on a Sunday, as occurred in 2010, then that full-time employee, would also be entitled to enjoy the following Monday and Tuesday as public holidays and be absent from work; (2) New Year's Day were to fall on a Saturday and Christmas Day on a Sunday and Boxing Day on a Monday, as occurred in 2011, then that full-time employee would be entitled to enjoy the Monday following New Year's Day, the Monday following Christmas Day and the Tuesday following Boxing Day as public holidays and be absent from work. 39 Woolworths could, of course, under s 114(2) make a request for such employees to work on the Monday and/or the Tuesday. Under s 114(3) the employee may refuse any such request. There may then be a debate about the reasonableness of the request and the refusal. If a request were made and a refusal were reasonably given then the employee would not be required to attend work on either the Monday or the Tuesday. In either case, in the absence of an effective enterprise agreement s 116 of the FW Act would apply. 40 Section 116 deals with payment for absence on a public holiday and provides that, if in accordance with Div 10 an employee is absent from his or her employment on a day or part-day that is a public holiday, the employer must pay the employee at the employee's "base rate of pay for the employee's ordinary hours of work on the day or part-day". Thus the full-time employee would receive their base rate of pay for their ordinary hours of work on a Monday and Tuesday, even though they did not attend on those days following Christmas Day and enjoyed the actual Christmas Day and Boxing Day public holidays on the days on which they fell on the weekend when they were not rostered to work. 41 In this case, however, the parties refer to the agreement they negotiated in 2009, and which was finally approved by members of the union and came into effect in May 2010. The union says that the surrounding facts, which the Court is entitled to take into account when interpreting or construing the agreement and in particular cl 7, include the understanding shared by the parties that Woolworths' employees should not lose the benefit under Western Australian law of the full array of public holidays including the additional public holidays created by the WA PBH Act where New Year's Day, Christmas Day and Boxing Day fall on a weekend. The union ultimately says that whatever the proper construction of the agreement on its face, it cannot derogate from the public holiday entitlements employees have under the FW Act, and that if cl 7 of the agreement purports to exclude the s 114(1) public holiday entitlements, then it is of no effect by virtue of s 56. 42 As noted above in para 10(8)(f), the parties agree that at the time of making the agreement, the following background knowledge was reasonably available to the persons making the agreement, namely: (i) that Woolworths would recognise all additional holidays declared by the State Government (for example, where Boxing Day fell on a Saturday and the following Monday thereby became an additional public holiday); (ii) work on additional public holidays would be voluntary and paid the appropriate public holiday rate; and (iii) the provision for additional benefits when a non working day fell on a public holiday would not apply to additional public holidays; 43 Clause 7 is not easy to construe especially because of the inconsistent and ambiguous language used. It appears not to have been drafted by lawyers and to owe much of its content to earlier such agreements between the parties. Nonetheless, the parties (and employees) were aware that the agreement was being made in the context of the passage of the FW Act. Indeed, subcl 7.10.3 expressly refers to the FW Act. The parties, at least, may be taken to have made the agreement accepting the operation and force of the FW Act. I do not find it helpful otherwise to attempt to draw any other background facts from the evidence concerning the negotiations that led to the conclusion of the agreement given in the proceeding by representatives of the parties. 44 By subcl 7.1 the parties have endeavoured to agree a set of public holidays that apply throughout the different States and Territories of Australia, in respect of which an employee is entitled to a day off without loss of pay, much like s 114(1), s 115(1)(a) and s 116 of the FW Act provide in respect of the eight core public holidays. The main difference between the s 115(1)(a) public holidays and public holidays in the agreement is that, by subcl 7.1, Labour Day or MayDay has been additionally included and Tasmanians apparently do not get Easter Saturday. 45 As a matter of drafting style, one would have thought that the specification of the particular public holidays in the first paragraph of subcl 7.1 might have been the subject of a subclause numbered 7.1.1. However, that is not the way the agreement has been drafted. Instead a subcl 7.1.1 immediately follows the first paragraph of subcl 7.1. Subclause 7.1.1 specifies additional public holidays or, where stated, public holidays "in lieu" of the particular public holidays earlier listed in subcl 7.1. For example, in Western Australia, Foundation Day (recently renamed "Western Australia Day") is added as an additional public holiday. As it is not stated to be in lieu of any of the days earlier stated in subcl 7.1, it is taken to be an additional public holiday. 46 Subclause 7.2 then deals expressly with what are described in the heading as "HOLIDAYS IN LIEU". That suggests that these holidays are to be in "substitution" for the relevant public holidays mentioned, namely Christmas Day, Boxing Day, New Year's Day and Australia Day. For example, by subcl 7.2.1, the parties agree that: 7.2.1 When Christmas Day is a Saturday or a Sunday, a holiday in lieu thereof shall be observed on 27 December. 47 This is a provision of a different character and having a different effect from the Second Schedule and s 5 of the WA PBH Act, which as I have explained above, have the legal effect of making the Monday following Christmas Day - not a particular date on the calendar - where Christmas Day falls on a Saturday or Sunday, an additional public holiday, not a substitution or in lieu public holiday. Under subcl 7.2.1, if Christmas Day falls on a weekend, then a public holiday "in lieu" will be enjoyed on 27 December regardless of what day on the weekend Christmas Day falls. If Christmas Day is on a Saturday, then Monday 27 December will be the "in lieu" public holiday. If it falls on a Sunday, then Tuesday 27 December will be the "in lieu" public holiday. By contrast, under the WA PBH Act, both Christmas Day on the Saturday or Sunday and Monday 26 December are public holidays. 48 As a result, subcl 7.2.1 and the WA PBH Act only achieve a degree of harmony where Christmas Day falls on a Saturday as both then cause or enable Monday 27 December to be a public holiday. They lack consistency in all instances however because, under the WA PBH Act, the Monday is a public holiday in its own right and not "in lieu" of Christmas Day. There is also an inconsistency where Christmas Day is on a Sunday, because under the WA PBH Act the Monday is a public holiday, whereas subcl 7.2.1 provides for the Tuesday, 27 December, to be the public holiday "in lieu". 49 The provision by subcl 7.2.1 of a public holiday in lieu on Tuesday 27 December in such circumstances causes another issue to arise. Where Christmas Day falls on Sunday 25 December, then under the WA PBH Act, the following day is also a public holiday because it is Boxing Day. For that reason, no doubt, the Second Schedule further provides that where Boxing Day falls on a Sunday or a Monday, the following Tuesday will be a public holiday and bank holiday. On the face of it, subcl 7.2.1, which purports to make 27 December a holiday in lieu of Christmas Day whenever Christmas Day is on a Saturday or a Sunday, produces a direct clash with the additional public holiday recognised by the WA PBH Act and picked up by s 115(1)(b) of the FW Act. 50 Subclause 7.2.2 of the agreement then provides that when Boxing Day is on a Saturday or a Sunday a holiday in lieu shall be observed on 28 December. Subclause 7.2.2 is potentially inconsistent with the WA PBH Act because, under that Act, where Boxing Day falls on the Sunday or the Monday, the Tuesday is also a public holiday. By contrast subcl 7.2.2 makes no provision for what happens if Boxing Day is on a Monday. Consequently, subcl 7.2.2 is more limited than the WA PBH Act public holiday provision picked up by s 115(1)(b) because it only operates to provide an "in lieu" day where Boxing Day is on a Saturday or Sunday, and has nothing to say about Boxing Day where it falls on a Monday. 51 Subclause 7.2.3 then provides that when New Year's Day or Australia Day is a Saturday or Sunday, a holiday in lieu shall be observed on the next Monday. The WA PBH Act, so far as Australia Day is concerned, makes the public holiday 26 January "or" - that is to say, by way of substitution - the first Monday following 26 January where 26 January is a Saturday or Sunday. Where New Year's Day falls on the Saturday or Sunday, however, the next following Monday is also a public holiday under the WA PBH Act. While subcl 7.2.3 is similar to the WA PBH Act provision in that it provides for a holiday on the next Monday when New Year's Day is a Saturday or Sunday, under the agreement it is only a holiday "in lieu". To the extent that subcl 7.2.3 might be construed as removing the public holiday entitlement created by s 114 for Western Australian public holidays picked up by s 115(1)(b), it is inconsistent with the FW Act provisions. 52 For these reasons, I have considerable difficulty in understanding how the provisions of subcl 7.2 can be read in any way other than inconsistently with the relevant provisions of the FW Act. Woolworths, however, mounts a number of arguments to the contrary based on both the history of the proper construction of public holiday provisions as substitution day provisions in industrial awards and also to the effect that a relevant employee is not, in any event, any worse off under cl 7 than under the NES and so the agreement, properly construed, is effective according to its terms under the FW Act. 53 First, Woolworths contends that the NES does not create an entitlement to any penalty rate of payment in circumstances where an employee works on a public holiday. In its written submissions, Woolworths submits that: Conventionally, the entitlement to payment for work done on a public holiday is prescribed in modern awards and enterprise agreements. In this case, the source of an employee's entitlement to a penalty rate of payment for work done on a public holiday arises under subcl 7.10 of the Agreement and not the NES. 54 Woolworths notes that it runs a business in an industry where employees often work on public holidays and, as a result, specific provisions have been made in national awards. In particular Woolworths refers to the Public Holidays, Re ((1994) Public Holidays Test Case) (unreported, AIRC, L4534, Hancock, MacBean SDP and O'Shea C, 4 August 1994) (Public Holidays Test Case). Woolworths notes these types of awards prescribe holidays to be observed including on New Year's Day, Christmas Day and Boxing Day, and when a prescribed holiday falls on a Saturday or a Sunday or, in the case of Boxing Day, on a Monday, a substitute day is provided: as in the Public Holidays Test Case at 19-20. 55 Woolworths contends that it is a "well-accepted principle" that where a public holiday falls on a weekend, the observation of the public holiday may take place on the substitute holiday rather than the actual day on which the traditional ceremonies and festivities associated with the holiday occur, and in this regard refer to: In re Butter, Cheese and Bacon Factories and Milk and Cream Condenseries, &c. (State) and Butter, Cheese and Bacon Factories and Milk and Cream Condenseries, &c. (Newcastle and Northern) Awards [1950] AR 62 at 64 - 65; In re Boarding Houses, &c., Employees (State) Award and Other Awards [1961] AR 383 at 392 - 393; In re Iron and Steel Works Employees (Australian Iron and Steel Limited - Port Kembla) and Other Awards [1954] AR 562; Employers' Federation of New South Wales v Australian Liquor, Hospitality and Miscellaneous Workers' Union, Miscellaneous Workers' Division, New South Wales Branch (1994) 87 IR 335. 56 Woolworths also notes that in the past it has entered into enterprise agreements with its workforce containing provisions consistent with "the orthodox approach" prescribed in awards and that in a number of cases the Federal Court has determined that on their proper construction, where the enterprise agreement provided an actual public holiday on a weekend and a public holiday observed in lieu on the following weekdays, the relevant provisions did not create an entitlement to an "additional" public holiday: Shop, Distributive and Allied Employees' Association v Woolworths Limited [2000] FCA 206 at [13]-[17]; Shop, Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCA 25 at [51]; Shop, Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [18]. 57 As a result, Woolworths contends that subcll 7.1, 7.2, 7.3 and 7.4 give effect to the approach accepted in earlier Woolworths enterprise agreements and recognised in the Federal Court cases, namely: subcl 7.1 provides that an employee is entitled to a day off work without loss of pay on the standard public holidays including New Year's Day, Christmas Day and Boxing Day; subcl 7.2 provides holidays in lieu where New Year's Day, Christmas Day and Boxing Day fall on weekends - an approach consistent with the Public Holidays Test Case; subcl 7.3 recognises additional public holidays legislated, proclaimed or gazetted under State or Territory laws to be observed generally but specifically excludes additional public holidays set by a State on the days set out in subcl 7.1 or subcl 7.2; the combined operation of these provisions makes it plain that, in accordance with the "historically accepted industrial prescription", the public holidays specified in subcl 7.2 are not additional holidays to subcl 7.1, but substitute public holidays. 58 In my view, the appeal by Woolworths to the historic construction of historic industrial awards dealing with "standard" public holidays and public holidays given "in lieu" of those days is not relevant to the proper interpretation or construction of the provisions of Div 10 which recognise public holidays in different workplaces in Australia for the purposes of the FW Act. The submission in this regard fails to recognise that the FW Act is a piece of federal, national legislation to be interpreted according to its terms and is the primary source of public holiday entitlements in workplaces to which it applies. Nothing in the FW Act betrays an understanding that Parliament intended that ss 114-116 in Div 10 are to be interpreted or construed according to past industrial determinations or practices. 59 Accordingly, when one interprets or construes the FW Act it is clear that s 115(1)(b), as I have explained above, picks up certain public holidays recognised by the State or Territory. When a relevant jurisdiction specifies a particular day as a discrete public holiday, then it is picked up, if it otherwise answers the description in s 115(1)(b). In doing so, it is not necessary for this Court to undertake some artificial or elongated enquiry into whether or not the additional days, such as those recognised in this case by the WA PBH Act where Christmas Day and New Year's Day fall on a weekend and Boxing Day falls on a Sunday or a Monday, exhibit the attributes of a religious holiday or some other festival, pagan, religious or otherwise. As the debate in the House of Lords in 1871 in relation to the 1871 UK Act, discussed above, demonstrates, the new public holidays created then were considered secular holidays. Similarly, in my view, the relevant additional public holidays in Western Australia the subject of dispute in this case following, where they arise, New Year's Day, Christmas Day and Boxing Day, are public holidays in their own right and are secular public holidays. By s 5 of the WA PBH Act, those days apply "throughout" Western Australia. They fit the description of additional public holidays for the purpose of s 115(1)(b). The Parliament of Australia has provided a very clear formula for the enjoyment of entitlements in respect of public holidays by these provisions of the FW Act. These additional days in Western Australia fall within that formula. The appeal by Woolworths to historic court, tribunal and industrial award practices in order to arrive at a different conclusion is, in these circumstances, misplaced, and I reject it. 60 Woolworths argues additionally that, by s 55(4) of the FW Act, cl 7 permissibly supplements provisions of the NES in the following ways, by: (1) providing for additional public holidays as set out in subcl 7.1 (being Easter Saturday and the days specific to particular States and Territories in subcl 7.1.1); (2) providing for the additional entitlements in subcl 7.7.1; and (3) providing in subcl 7.3 and subcl 7.10.3 for the rate of pay to apply in respect of work done on certain additional holidays. 61 The union contends that in Western Australia where the WA PBH Act specifically provides for additional public holidays in certain circumstances (and here refers to what was said in Parliament in respect of the 1987 amendments to the WA PBH Act and appears in Hansard 21 October 1987 at pp 4839-4840), subcl 7.2, which the union says must be read with subcl 7.4 (a submission with which I agree), has no relevance or operative effect in respect of the additional public holidays that are picked up. It contends that subcll 7.2 and 7.4 provide for substitution of public holidays only and that the substitution provisions cannot displace the entitlement under the FW Act to additional public holidays picked up by s 115(1)(b). It describes such days as "functionally distinct" from statutory provisions providing for additional public holidays and refers to what was said, in that regard, in Shop, Distributive and Allied Employees' Association Application [2009] AIRC 884 at [8]-[10], [16]-[20]; Shop, Distributive and Allied Employees Association Application [2009] AIRC 924. Thus, the union contends that subcl 7.2 has no application and the relevant employees are entitled to the additional public holidays picked up by the FW Act. 62 I accept the union's submissions in this regard. As I have indicated above, subcl 7.2 is all about providing "in lieu" or substitute holidays for the earlier mutually agreed public holidays. The additional public holidays picked up by s 115(1)(b) are public holidays in their own right and the NES entitlement applies to them. To the extent that subcl 7.2 might be relied upon by Woolworths to reduce or alter or affect the entitlement of an employee under the NES, it is of no effect. Subclause 7.4 only applies in respect of a substitution day which has legal effect under subcl 7.2. It has no application to an additional public holiday in Western Australia picked up by s 115(1)(b). 63 The union then goes on to contend that the rate of pay for the relevant additional public holidays in Western Australia picked up by the FW Act is provided for in subcl 7.3 at the end of the second, unnumbered, paragraph where it states, in parenthesis, that in States and Territories (other than New South Wales (with an exception) and the ACT), "any work on such a day or half day will be paid in accordance with subclause 7.10". The union says that the parties made this provision in circumstances where the parties, in concluding the agreement: (1) can be taken reasonably to have known as background knowledge that different entitlements may be provided for in each State and Territory and that in Western Australia the WA PBH Act provided for the additional public holidays; (2) the NES had just been introduced and included as public holidays in s 115, holidays which were declared or prescribed by or under a law of the State, without the ability to displace the entitlements under an enterprise agreement; (3) it was known to the parties and they had jointly informed the employees, who were the persons about to make the agreement with the union, that Woolworths would recognise additional public holidays such as the additional public holidays declared by a State Government. 64 The union then refers to subcl 7.10, in particular subcl 7.10.3, which it says prescribes the particular rate of pay to be applied where an employee works on one of the additional public holidays so picked up. 65 Subclause 7.10.3 is recognised by the parties as being problematic in all respects because, while subcl 7.3 refers to the rate of pay provided by subcl 7.10 - and subcl 7.10.3 is the apparently relevant provision - subcl 7.10.3 purports to exclude from the pay formula specified therein a day "designated as a public holiday for that employee under subclauses 7.1 to 7.4". Because of this apparent contradiction, the union submits that subcl 7.10.3 should not be interpreted as excluding work done on any of the additional public holidays picked up by s 115(1)(b) because to do so would: (1) be contrary to the intended purpose of subcl 7.3 and subcl 7.10.3 and the common understanding at the time of the making of the agreement that Woolworths would recognise all additional holidays of that kind; (2) be contrary to subcl 7.3 which provides that in Western Australia, amongst others, payment for any work on such days to be in accordance with subcl 7.10; (3) be to overlook the fact that some of the provisions of the agreement, being of national application, may have no effect in certain circumstances (for example, subcl 7.2 where additional holidays come within the scope of subcl 7.3); (4) overlook the fact that additional public holidays which may be declared or prescribed pursuant to the provisions of the WA PBH Act may deal, for example, with circumstances such as where a public holiday falls on a Saturday or Sunday, but are not confined to such circumstances or additional days. 66 The union says that the additional public holidays in Western Australia are additional days within the scope of subcl 7.3, which are excluded from the benefits of subcl 7.7.1 but are subject to specific and separate treatment in subcl 7.10.3. 67 Woolworths, on the other hand, submits that subcl 7.3 does not create an entitlement to the additional "public weekday holidays" because a holiday set by a State law on a day recognised in lieu under subcl 7.2 is specifically excluded from being recognised as an additional holiday for the purposes of the agreement by the express words "other than a day set out in subclauses 7.1 and 7.2" that appear in subcl 7.3. 68 In my view, subcl 7.3 does refer and apply to additional WA PBH Act holidays picked up by the FW Act. They are, in my view, additional days legislated etc and to be observed generally throughout Western Australia and so are caught by the general words used in subcl 7.3. 69 But these general words are then followed by the words "other than on a day set out in subclauses 7.1 or 7.2". This raises the question as to what days are "set out" in subcl 7.1 and subcl 7.2. The days set out in subcl 7.1 include, for present purposes, New Year's Day, Christmas Day and Boxing Day. For Western Australia, by subcl 7.1.1 (which for present purposes I will take to be within the reference to subcl 7.1) they also include Foundation Day. That much is clear enough. But what are the days "set out" in subcl 7.2? Each of those days is described as "a holiday in lieu", being: under subcl 7.2.1, 27 December in lieu of Christmas Day where it falls on a Saturday or Sunday; under subcl 7.2.2, 28 December, when Boxing Day falls on a Saturday or a Sunday; under subcl 7.2.3, the next Monday, when New Year's Day or Australia Day falls on a Saturday or a Sunday. 70 In my view, the intent of the expression "other than on a day set out in subclause…7.2", as it is used in subcl 7.3, is a reference to the date of the holiday in lieu. Contrary to Woolworths' submission, that limiting expression does not include a discrete, additional secular public holiday created by the WA PBH Act and picked up by s 115(1)(b). 71 As a result, under subcl 7.3 a full-time or part-time employee is entitled to enjoy the additional public holidays so created under the WA PBH Act "without loss of pay" or, if they work on such a day, to "be paid in accordance with subcl 7.10". This pay provision is, on the face of it, supplementary to the NES entitlements and effective. 72 However, I do not consider that this pay provision in subcl 7.3 applies to the public holidays of New Year's Day, Christmas Day or Boxing Day which are listed in subcl 7.1 and so are not additional days to which subcl 7.3 applies. 73 It is also relevant to note that subcl 7.10.3, which is part of subcl 7.10 to which subcl 7.3 refers, as discussed below in more detail, expressly acknowledges that the FW Act may be a source of public holidays. This too lends support to the view that the additional public holidays I have identified as ones to which subcl 7.3 applies, are such public holidays. 74 The parties then draw attention to the apparent difficulty in construing subcl 7.10.3. Whereas subcl 7.3 refers to subcl 7.10 for the relevant rate of pay, subcl 7.10.3 states that it applies to work done by an employee "on any day which the Company is required to recognise as a public holiday under the Fair Work Act 2009 in respect of that employee (not being a day otherwise designated as a public holiday for that employee under subclauses 7.1 to 7.4)" (emphasis supplied). There is no difficulty in identifying the additional WA PBH Act public holidays that exist where Christmas Day or New Year's Day fall on a weekend or Boxing Day falls on a Sunday or Monday, as a day which "the Company is required to recognise as a public holiday under the Fair Work Act 2009". However, the pay rate specified by subcl 7.10.3 applies only to days so described "not being a day otherwise designated as a public holiday for that employee under subclauses 7.1 to 7.4". The two provisions thereby appear to be contradictory. 75 Before going further, however, it is important to note that subcl 7.10.3 only applies in particular circumstances, for example: Subclause 7.10.3(a) only applies "if Boxing Day falls on a Saturday" and the additional public holiday falls on "either 26 December or 28 December". Thus, the parties have made no agreement in the event that Boxing Day falls on a Saturday and the additional public holiday falls on 27 December. As it transpires, under the WA PBH Act, if Boxing Day falls on a Saturday, the additional public holiday will be Monday 28 December. On the face of it, therefore, subcl 7.10.3(a) would not apply in 2010, in the case of the employee with the Monday to Friday roster, as Boxing Day fell on a Sunday (not a Saturday), even though the additional public holiday was Tuesday 28 December 2010. Nor would it apply in 2011, where Boxing Day fell on a Monday and the additional public holiday fell again on Tuesday 27 December 2011. Subclause 7.10.3(b) only applies "if Christmas Day falls on a Saturday and Boxing Day falls on a Sunday" and "the additional holiday(s) falls between 25 December and 28 December (inclusive)". As it transpires, under the WA PBH Act, in these circumstances there are additional public holidays on the Monday 27 December and Tuesday 28 December. As the additional holidays fall between 25 December and 28 December, this subclause would apply in the year 2010. Subclause 7.10.3(c) only applies "if Christmas Day falls on a Sunday" and "the additional holiday falls between 25 December and 27 December (inclusive)". This would apply, on the face of it, in the year 2011, because Christmas Day fell on a Sunday and the additional public holiday in Western Australia picked up under the FW Act fell between 25 December and 27 December, namely on Monday 26 December. Subclause 7.10.3(d) only applies "if New Year's Day falls on a Saturday" and "the additional holiday falls on either 1 January or 3 January". This would apply in 2011, because New Year's Day fell on a Saturday and the additional public holiday in Western Australia picked up by the FW Act fell on Monday 3 January. 76 Subclause 7.10.3 thereby provides very particularly for circumstances where additional holidays created by a law such as the WA PBH Act (and separately recognised by subcl 7.3) are days on which a relevant employee works. It seems to me that subcl 7.10.3, for the reasons contended for by the union, is intended to apply to full-time and part-time employees who work on those additional public holidays so described within subcl 7.10.3. Whatever the expression "not being a day otherwise designated as a public holiday for that employee under subclauses 7.1 to 7.4" means, I conclude that, taking cl 7 of the agreement as a whole, it is not intended to include an additional public holiday under the WA PBH Act picked up by s 115(1)(b) to which subcl 7.3 applies. To so construe it would negate the particular provision for payment to be made for work done on such days in respect of which subcl 7.10.3(a)-(e) have gone out of their way to cover. 77 Woolworths then raises a further argument and says that the agreement is the legal instrument that prescribes the payments to be made on public holidays and the specified days for receiving the payments and not the NES. That submission is correct, on the understanding that, depending on the circumstances of a case, the NES represented by s 116 may apply if the provision of an enterprise agreement is found not to be effective. Broadly speaking, as submitted by Woolworths, the agreement can identify "public holidays" in respect of which payment is made (and not made) and the amount of payments (so long as it meets or is more favourable than the payments required under s 116). Substituting a public holiday, it is contended, is not inconsistent with the NES. Woolworths takes as an example the situation where a full-time or part-time employee was ordinarily rostered to work on Monday 2 January 2012, but not Sunday 1 January 2012. It submits that, even assuming that s 115(1)(b) designates Monday 2 January 2012 as a public holiday in Western Australia for the purposes of the NES, the employee's entitlement under the NES is simply to have that day off, subject to a reasonable request to work, and be paid at their base rate of pay for their ordinary rostered hours. It is submitted the NES on such a case does not confer any entitlement on the employee in respect of Sunday 1 January 2012. The agreement gives the same employee a more beneficial entitlement in respect of Monday 2 January 2012. It does not matter that Monday 2 January 2012 is regarded as a "substitute" New Year's Day holiday for the purpose of the agreement and the practical effect of the agreement is to confer a greater benefit on the employee in respect of the day. As a result, no practical inconsistency would arise regardless of the name by which Monday 2 January 2012 might be designated under the agreement. 78 In my view, the question whether or not a modern award or enterprise agreement excludes the NES or a provision of the NES for the purposes of s 55(1) of the FW Act, is not to be determined simply by assessing or trying to assess whether there is a practical inconsistency, as Woolworths puts it, between the benefits realisable under the award or agreement compared with what the position might otherwise be. Either an award or agreement will, by its terms, be found to exclude the NES or a provision of the NES or it will not. It may be that exclusion will be found where the effect of the agreement or one of more of its terms is to exclude the NES or a provision of them. Here, in my view, it is not open to conclude that the agreement does not offend the FW Act, simply because other benefits are given in respect of a public holiday. The FW Act recognises a particular day as a public holiday. It is not open to Woolworths effectively to treat that particular day as something less than a discrete public holiday. The legal basis upon which an employee is entitled to take that day as a public holiday or to be paid for working on it is important. 79 Woolworths further argues that even assuming that substitution of public holidays is not permitted unless authorised by the NES, under s 115(3) of the FW Act, subcl 7.2 can substitute the public holidays. Woolworths says it is, in terms a clause which provides for an agreement substituting a public holiday which would otherwise have been a public holiday under the NES. It says that s 115(3) enables the parties to include a term providing for an employer and employee to agree for the substitution of a public holiday under the NES. Subclause 7.2 does this. 80 It might be remarked, however, that all subcl 7.2 does is substitute the actual Christmas Day, Boxing Day, New Year's Day and Australia Day public holidays with other nominated days in certain circumstances. As noted earlier, the purported substitution of those nominated days for 27 December, 28 December and the next Monday following, respectively, cannot remove entitlements created by the FW Act in respect of public holidays that otherwise fall on those substitute days or any other relevant week days. Subclause 7.2 cannot be relied upon, therefore, as removing an entitlement an employee has under the FW Act and the NES. 81 Woolworths further argues that the union is urging a construction of the FW Act and the agreement that is at odds with the context in which the agreement was negotiated. It says the outcome would sit starkly at odds with the outcome in the Public Holidays Test Case. Accordingly, one would need to divine a clear intention by the parties to depart so dramatically from what is characterised as a standard federal industrial entitlement. Woolworths says a similar argument was rejected by Marshall J in Australian Nursing Federation v St Francis Xavier Cabrini Hospital Governing Board Inc [2006] FCA 124; (2006) 153 IR 1 at [25] - [30]. Be that as it may, as I have emphasised on a number of occasions above, it is to the terms of the FW Act that one must refer, not other legislative or industrial contexts, in determining what particular entitlements an employee has in respect of particular public holidays as defined by the FW Act. If the terms of the FW Act do not meet the expectations of some parties as to what the entitlements of employees should be in respect of public holidays, then that is a policy issue which may be addressed to legislators or possibly dealt with by the sensible agreement of the parties. 82 Similarly, Woolworths submits that the union's construction, if accepted, would lead to anomalous results in that: (1) a full-time or part-time employee normally rostered to work on the substitute/additional week day holiday on the Monday or the Tuesday, but not on the "actual" holiday falling on the weekend day, would receive a double benefit in respect of the same holiday; but (2) a full-time or part-time employee normally rostered to work on the "actual" holiday falling on the weekend day, but not on the substitute/additional day falling on the Monday or Tuesday, would only receive a single benefit in respect of the holiday. 83 The response to this submission is the same as to the previous submission. This may be so. It may be an anomalous result. It is, however, a matter of policy that may be addressed to the legislators or an issue the parties may possibly deal with by agreement. There is one further qualification to that point, however, which is this. A double benefit is not, on the proper construction of s 115(1)(b), being given in respect of "the same holiday". It is not the same holiday. The week day public holiday is a separate, secular public holiday in Western Australia picked up by the FW Act. It might be said that the Parliament of Western Australia has been more generous than other jurisdictions in this regard, but so be it. The Commonwealth Parliament by s 115(1)(b) has chosen to adopt that State's public holidays.

Shop, Distributive and Allied Employees' Association v Woolworths Ltd

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