What an old enterprise clause cost Village Roadshow when the calendar shifted
A Queensland theme park giant has been told its enterprise agreement can't override the National Employment Standards. The reconciliation bill is now coming due.
The Fair Work Commission ruled on 12 May 2026 that Village Roadshow Theme Parks got the 2025 Australia Day public holiday pay wrong. The company had applied an old clause in its enterprise agreement to pay penalty rates on the Sunday "celebrated day" instead of the Monday gazetted holiday.
Here's how the dispute played out. Australia Day fell on Sunday, 26 January 2025. Under the Queensland Holidays Act 1983, when Australia Day lands on a weekend, the public holiday rolls over to the following Monday. So the gazetted holiday for 2025 was Monday, 27 January.
The Village Roadshow Theme Parks - AWU Agreement 2016-2018 says public holidays are only recognised on the "celebrated day." Acting on that clause, the company paid the public holiday penalty rate on the Sunday and ordinary rates on the Monday. Employees rostered on the Monday got no penalty loading. Some were told they'd need to use annual leave or long service leave to take the gazetted holiday off.
The Australian Workers' Union filed a dispute under section 739 of the Fair Work Act. It argued the clause excluded the NES and was void under section 56. Village Roadshow initially disagreed. Mid-hearing, the employer shifted its position and conceded that Monday, 27 January 2025 was the public holiday for employees on the agreement and for those on individual flexibility agreements.
That concession narrowed the case to one question. Which day attracts which rate.
Commissioner Spencer found that the agreement clause recognising public holidays only on the "celebrated day" was inconsistent with section 115(2) of the Act and the Holidays Act. Both treat the substituted Monday as the public holiday. Under section 56, the clause had no effect to the extent of that inconsistency.
The outcome is straightforward. Employees who worked Sunday, 26 January 2025 are entitled to Sunday rates under Schedules B.1.1 and B.2.1 of the Amusement, Events and Recreation Award 2020 - time and a half. Employees who worked Monday, 27 January 2025 are entitled to public holiday penalty rates - double time and a half with a minimum of four hours.
The scale is real. According to a pay run assessment tendered by the employer's witness, 598 employees worked only on the Sunday, 387 worked only on the Monday, and 728 worked both days.
The Commissioner acknowledged the agreement had "some age to it." Its nominal expiry was 10 July 2019, and renegotiation was underway at the time of the proceedings. Reconciliation will mean some employees end up overpaid and others underpaid. The parties had asked the Commission for these answers so they could have further discussions on reconciling the payments.
For HR teams, the lesson is familiar. Enterprise agreement clauses negotiated years ago can drift out of alignment with the NES as legislation and awards evolve. The Commission has been consistent on this - in the Plain Language Redrafting Case [2019] FWCFB 5145 and in agreement approval decisions since - that an agreement term excluding an NES entitlement has no effect to the extent it does so.
The practical signal: review public holiday clauses now, especially in older agreements, and especially where the wording predates current substitution rules. The Federal Court Full Court's decision in CFMMEU v OS MCAP Pty Ltd [2023] FCAFC 51, cited by the Commissioner here, also sits in the background - employers can't unilaterally require employees to work public holidays without a reasonable request.
The Commission ordered accordingly.
