In summary, the union application is seeking to require the payment of a higher rate of pay (for example: overtime, penalty rates, or allowances):
- for a public holiday appointed by proclamation under s.7 of the Public and Bank Holidays Act 1972 (WA) (PBH Act) (Special Public Holidays) for employees covered by an industrial instrument as is currently required when an employee works on a public holiday which is defined or recognised in the industrial instrument (Defined Public Holiday).
- where a more beneficial term is contained in an industrial instrument as compared to the proposed general order.
Current entitlements for Special Public Holidays
An example of a Special Public Holiday includes the National Day of Mourning for Queen Elizabeth the Second on Thursday, 22 September 2022. Special Public Holidays are not frequently proclaimed.
Currently, Local Government employees would generally be entitled to the following payments on a Special Public Holiday depending on which industrial instrument applies:
| Industrial instrument | Entitlement for Special Public Holiday | Relevant clauses and legislation |
| New State instrument – Local Government Industry Award 2020 (new State instrument LGIA) | Public holiday penalty rate – 250% of the minimum hourly rate for the actual hours worked | Clause 28.1 Note: s.115(1) of the Fair Work Act 2009 (Cth) recognises a Special Public Holiday as a NES public holiday |
| Local Government Officers’ (Western Australia) Award 2021 (LGO) | Public holiday penalty rate – double time and one half for all time worked | Clause 28.5 recognises that the public holiday penalty rate must be paid on a Special Public Holiday (see also clause 28.3) |
| Municipal Employees Award (Western Australia) 2021 (MEA) | Ordinary rate of pay for actual hours worked | Clause 24.6.1 only requires that the public holiday penalty rate is paid for work performed on a public holiday provided in clause 24.1 |
In addition to the awards, a Local Government’s industrial agreement may include specific clauses regarding the payment of penalty rates on public holidays which may include Special Public Holidays.
See ER Alert 17/2022 for further information about the public holiday employment entitlement payable for last year’s National Day of Mourning.
Impact of proposed general order on Local Governments
If the proposed general order is made by the WAIRC, Local Governments will be required to pay the public holiday penalty rate for employees covered by the new State instrument LGIA, the LGO and also for employees covered by the MEA.
The Chamber of Commerce and Industry of Western Australia Limited, the Australian Mines and Metals Association and the Hon. Minister for Industrial Relations are required to file a written response to the proposed general order by 23 February 2023.
Your feedback on the proposed order
Under s. 51BB of the IR Act, the WAIRC may permit an employer and employee to be heard before the proposed general order is made by the WAIRC.
Local Governments wishing to individually object to the proposed general order or to be heard will have an opportunity to make written submissions once the WAIRC publishes a notice in the WA Industrial Gazette under s.51BA of the IR Act.
Local Governments can contact WALGA Employee Relations in the first instance with any questions, for guidance or to provide feedback on the proposed general order. Written feedback will need to be received by WALGA ER by 22 February 2023.
If you have any questions about this alert, please email WALGA Employee Relations or call 1300 366 956.
