Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Hansard source

The government opposes the proposed amendments as they would unnecessarily limit the ability of employers and employees to negotiate arrangements that best suit their needs. The Workplace Relations Act provides a statutory entitlement to public holidays, in particular the specified iconic public holidays like Christmas Day and Australia Day; days substituted for those public holidays, for example if Christmas Day falls on a Sunday; and days declared as public holidays under state or territory law. Just as importantly, the act provides a right to paid leave on those public holidays. It also gives employees the right to reasonably refuse a request to work on a public holiday.

Whether a refusal is reasonable depends on all the circumstances; those that relate to both the employee and the employer. If somebody was employed at a service station, for example, and they indicated to their employer with plenty of notice—and I am not sure that the opposition amendment deals with the amount of notice that is required to be given by the employee to the employer—that they did not want to work because they had a religious commitment on that day, given that there may be a large pool of people to draw upon, that may be a perfectly reasonable request. However, if a doctor has been rostered on for an emergency service requirement at a public hospital, for example, and is an employed doctor, and he indicates he has a religious commitment one day before the particular religious holiday, I think it would be fair to say that the chances are in all the circumstances that would be deemed to be unreasonable. That is why there is the need for flexibility, and I think we have got the balance right in relation to that.

Of course, awards and agreements can provide additional entitlements such as penalty rates for working on public holidays or extra days off in lieu. Observance of public holidays and entitlements to payment on those days are protected award conditions for the purposes of agreement making. This means that they cannot be excluded or modified by a new workplace agreement without fair compensation in lieu. The statutory guarantee to public holidays under the Workplace Relations Act is similar to, if not stronger than, rights to public holidays under state and territory law. Allow me to give you two examples.

In New South Wales an entitlement to a paid day off for a public holiday is not determined by the relevant legislation, the Banks and Bank Holidays Act 1912. That legislation only proclaims public holidays. An entitlement to a paid day off must come from an award agreement or contract of employment. Another example—or another two, in fact—is that in Queensland and Western Australia employees are entitled to be paid for public holidays, but there is no statutory right for employees to reasonably refuse to work on those days. So the proposals being put forward by the opposition are unworkable. Once again, they do not allow for flexibility—in fact, they would tie up the legislation even more than in the past.