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Public holiday law an Almighty headache for taxpayers

Date

James Robertson

South Australia's Holidays Act preserved the sanctity of Sundays.

South Australia's Holidays Act preserved the sanctity of Sundays.

Godly South Australians always thought Sunday was too far away and helped themselves to 50 more public holidays than the people of NSW. Now it's going to cost Australian taxpayers plenty.

State parliamentarians in Adelaide, the so-called City of Churches, long ago passed the Holidays Act, which preserved the sanctity of Sundays by giving them the same legal status as Christmas and Easter.

Now 102 years later the virtue of those legislators has led to a financial headache for the federal government.

Public service departments have been told that all South Australian employees who worked for double-time on Sunday are legally entitled to double-time-and-a-half public holiday pay rates.

''It's one of those issues that is scarcely credible,'' said Professor Andrew Stewart of Adelaide University law school, ''but that's what the act has to say.''

The government won't say how much the total overtime bill will be, but it is likely to run to hundreds of thousands of dollars. But not every department is paying out and it is unclear how strong the case is compelling them to do so.

Government lawyers discovered the Sunday pay issue in February. After reviewing employment agreements, many departments are now paying overtime.

The Department of Agriculture, Forestry and Fisheries, which runs the Quarantine service, confirmed it had paid two-and-a-half years of overtime to 170 employees. But the department refused to say how much was paid, because it was considering making even more payments, from an even earlier date.

Some departments, such as Customs, said they were still calculating the size of the back payments. Immigration disclosed it had a comparatively small $40,000 overtime bill back-dated to last October, when a new enterprise agreement started.

Defence said it was not considering making payments, while the Australian Federal Police said it was considering options.

The Community and Public Sector Union said it was in talks with departments.

''We are taking a case-by-case approach,'' said the union's secretary, Nadine Flood.

However, two labour law experts told Fairfax they believed a court would be unlikely to enforce any right to back pay.

''My money would be on the employer's argument, said Professor Joellen Riley, from the Sydney University law school.

Professor Stewart said the act seemed clear if applied literally.

''But the sense I have is that everyone recognises that it's nonsensical. It's not what parties would have understood.''

The South Australian government made changes to the state's public holidays in April, but kept Sundays in the law.

Professor Stewart said the federal government could pass a law to overrule the SA Holidays Act: ''It's been more convenient to ignore it than sort it out.''

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