South Australian Employment Court hands down decision regarding RDOs and public holidays under the Local Government Employees Award
Norman Waterhouse Lawyers successfully represented the District Council of Loxton Waikerie (Council) in a recent decision of the South Australian Employment Court (Court) regarding the entitlement to pay on public holidays which fall on an employee’s rostered day off (RDO).
In Amalgamated AWU (SA) State Union v District Council of Loxton Waikerie [2021] SAET 249, His Honour Deputy President Cole found in favour of the Council, determining that employees of the Council to whom the Local Government Employees Award (Award) applies, are entitled to 7.6 hours pay on a public holiday which falls on their RDO.
Facts
Employees of the Council to whom the Award applies work pursuant to an RDO scheme whereby they work 9.5 hours per day, 4 days per week. Most employees work Tuesday to Friday, taking Monday as an RDO, while some employees work Monday to Thursday, taking Friday as an RDO.
In November 2019, as part of the triennial review of the Award, the following clause was inserted into clause 6.1.4.3 of the Award at the request of the Amalgamated AWU (SA) State Union (AWU):
“When a rostered day off falls on a Public Holiday the employee will be paid for the public holiday and the rostered day off will move to the next working day, or a day mutually agreed between the employer and the employee.”
The AWU’s explanation for seeking inclusion of the above clause was that:
“Full-time employees working a nine day fortnight should not be disadvantaged in accessing public holiday pay compared to full-time employees working a 10 day fortnight. This variation ensures the benefit that nine day fortnight workers receive from their rostered days off is not diluted by the loss of public holiday pay.”
In 2021, a dispute arose between the AWU and the Council in respect of the number of hours an employee is entitled to be paid for a public holiday which falls on the same day as their RDO.
The Council’s position was that if an RDO fell on a public holiday, relevant employees would be entitled to 7.6 hours pay and their RDO would move to the following day. This is consistent with the fact that employees ‘bank’ 1.9 hours each 9.5 hour working day, which after a working week entitles them to a 7.6 hour RDO. On the other hand, the AWU argued that employees are entitled to 9.5 hours pay, because they would have performed 9.5 hours of work had they attended work.
Decision
The Court determined that it was necessary to consider the purpose of the amendment to the Award which introduced clause 6.1.4.3, which in light of the AWU’s own explanation was to “remedy the anomaly that those employees who worked their weekly hours over less than a ten day fortnight and who had RDOs on Monday, missed out on payment for public holidays.” His Honour held that, adopting the Council’s argument, the relevant employees would have received a 1.9 hour bonus payment in comparison to employees working a ten day fortnight.
His Honour concurred with the Council’s argument that RDOs are not an automatic entitlement, but are an entitlement which arise when an employee works all of their ordinary hours in a week. As put forward by the Council, employees ‘bank’ 1.9 hours per 9.5 hour working day per week, so that 7.6 hours are then available to take an RDO.
The Court agreed with the Council that it made “practical and industrial sense” to pay the relevant employees 7.6 hours for a public holiday which falls on their RDO. Accordingly, the AWU’s application was dismissed.
Take Home Messages
This decision has implications for all councils in the local government sector in respect of their employees who are covered by the Award. In the absence of an enterprise agreement provision dealing with this discrete issue, it is now clear that employees are entitled to be paid 7.6 hours on a public holiday which falls on their RDO, and the RDO is moved to the following day. This is based on the ‘banking’ of ordinary hours on a daily basis which provides for the RDO entitlement – which is not an automatic entitlement.
All councils should review how they pay employees who work pursuant to an RDO scheme to ensure compliance with the Award and this recent decision.
Should you have any queries in relation to this article, or if you require specific advice in relation to your Council’s RDO scheme, please contact please contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au or Lincoln Smith on +61 8 8210 1203 or lsmith@normans.com.au.
