The Federal Government has in recent times introduced the National Employment Standards which includes a public holiday provision. This provision identifies eight public holidays that are to be recognised as public holidays for all employees and includes a clause that continues the recognition of local days or half days where a State Government proclaim or gazette such a day and that day is to be observed generally.

In recent times the NSW Government industrial relations office has been asserting that these local days and half days are now public holiday entitlements, which is contrary to their advice several weeks ago. This is a surprising revelation from MTA’s perspective.

What has changed?

The same local day or half day enabling clause that was in the federal award has been picked up in the National Employment Standards. This in itself should not alter the position – these days not being public holidays.

The NSW Government has reached agreement with the Federal Government to allow the private non corporation sector (sole traders and partnerships) to move into the federal industrial relations system and to adopt the federal workplace relations system for the private sector as of 1 January 2010. This in itself should not alter the application of these enabling clauses.

The Bank and Bank Holidays Act continues to provide for, and the NSW Government continues to publish in the gazette certain local day and half days as holidays for the locality (or local government area) to which that day is to apply. As such there should be no change here in application and therefore the day should not impact on business generally.

So what has changed? It appears the NSW Department of Industrial Relations has changed its position and it considers that these local days are now public holidays. The issue from an MTA perspective is that MTA does not know why the change in view.

If the Bank and Bank Holidays Act applies to businesses beyond banks, then perhaps these local days once published in the gazette should always have been public holidays. But does the Bank and Bank Holidays Act apply to businesses other than banks? If not then what is the relevance of these local days?

MTA has written to the Minister to seek some clarification and bases of the Government’s position. MTA awaits a response.

In the meantime any member in a regional area which is subject to a local day or half day holiday due to the publishing of that day in the gazette by the NSW Government and it is your intention to trade, please consider the following advice.

This substitution is available under both the modern clerical and vehicle awards. Members may identify these local days by referring to the April edition of the MTA Industrial News available within the members section of the web site within the employment relations area.

The NSW Government commenced an inquiry into public holidays during 2009. Regrettably nothing much has come out of this inquiry. If it had I doubt employers would be saddled with the uncertainty which now surrounds this issue. MTA would be hopeful of convincing the NSW Government to get on with the job and provide that certainty that NSW business requires during these difficult and uncertain economic times.

I look forward to providing more certain information in due course.