Public Holidays

In this article we explore the legislation around Public Holidays and what entitlements an employer must be aware of.

 

What days are considered a Public Holiday?

The Fair Work Act 2009 (Cth) (FW Act) sets out the key public holidays, but also recognises any other day declared by a State or Territory as a public holiday, or as a substituted public holiday.

The following days are public holidays under the NES:

  • 1 January (New Year’s Day);
  • 26 January (Australia Day);
  • Good Friday;
  • Easter Monday;
  • 25 April (Anzac Day);
  • King’s birthday holiday (the day on which it is celebrated in a State or Territory or a region of a State or Territory);
  • 25 December (Christmas Day);
  • 26 December (Boxing Day);
  • any other day or part-day declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory (or a region of the State or Territory) as a public holiday.

If one of the days recognised as a public holiday is substituted for a different day in a State or Territory, then it is the substituted day which is recognised under the National Employment Standards (NES). Awards and agreements may also supplement the public holidays provided for by the NES. It is important to ensure you check any relevant state legislation for any additional or regional holidays which may apply. A full list of national & state-based public holidays can be found here and this is routinely updated from time to time.

 

Are my employees entitled to be absent on a public holiday?

The FW Act outlines the basic provision under Section 114 that an employee is entitled to be absent from work on public holiday. However, an employer can request an employee to work, but only where that request is reasonable. An employer can only require an employee to work a public holiday after a request has been made and where an employees refusal of such request is unreasonable. But in all cases, the employee needs to be requested to work first (which they have an opportunity to accept or refuse), an employer cannot simply require an employee to work without first making the request.

 

When is it considered reasonable and unreasonable?

The FW Act provides for several factors that can be taken into consideration for whether a request to work on a public holiday is reasonable or unreasonable (and when a refusal to work would be reasonable or unreasonable). Generally, this is specific to the operational needs of the business, and the personal circumstances of the employee. This can include:

  • The nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;
  • The employee’s personal circumstances, including family responsibilities;
  • Whether the employee could reasonably expect that the employer might request work on the public holiday;
  • Whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;
  • The type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork);
  • The amount of notice in advance of the public holiday given by the employer when making the request;
  • The amount of notice in advance of the public holiday given by the employee when refusing the request; and
  • Any other relevant matter.
  • An employee can decline a request to work where reasonable (for example on the basis of their personal circumstance such as caring responsibilities).

However, typically for a business that would routinely open on a public holiday and also has provided advance notice that it will need employees to work (for example, if this was made clear when the employee was offered the role), it will usually be reasonable to request employees to work (and unreasonable for them to refuse).

 

Are employees entitled to payment if they are absent on a public holiday?

The basic position under the FW Act is that if a full-time or part-time employee is absent from work on a public holiday, and they would have ordinarily worked on that day, they are to be paid their base rate of pay for the ordinary hours they would have worked.

However, the FW Act makes clear that if the regular hours of a part-time employee do not include the day of the week the public holiday falls, they will not be entitled to payment. Casual employees are also not entitled to be paid when not rostered for a public holiday.

Importantly, Modern Awards and Enterprise Agreements can provide for more favourable conditions than these (for example an entitlement to payment for a public holiday even if this falls on a day they usually would not work), and as such it is important to refer to the relevant Award or Agreement that covers your employees.

 

What do I pay employees if they work a public holiday?

Modern Awards and Enterprise Agreements will usually set out any rules and additional entitlements for employees that perform work on a public holiday. Typically, this will incur a higher rate of pay for all hours worked on a public holiday. Under the Hair and Beauty Industry Award clause 23.1 employees receive a penalty rate of 250% of minimum hourly rate for work on a public holiday.

However, it is important to check the relevant Award or Agreement as this may contain additional benefits such as an entitlement to be provided with an alternative day off when working a public holiday, or alterations to the minimum hours of work an employee must be provided when working a public holiday.

 

How does a public holiday impact an employee taking Annual Leave or Personal/Carer’s Leave (“Sick Leave”)?

The entitlement to public holidays is separate from an employee’s entitlement to personal leave and annual leave. This means if a public holiday falls on a day where an employee is on a period of annual leave or paid personal leave (and the employee would ordinarily have worked on that day), they still must be paid for the public holiday and it does not reduce their annual leave or personal leave balance.

It is important to note that the above only applies for periods of paid leave (i.e. it wouldn’t apply to employees who are on a period of unpaid leave).

 

How HR Connect can help

If you require assistance with dealing with disciplinary issues concerning staff, HR Connect can help. Our HR Advisors will be able to guide you through each step of the disciplinary process and we have template documents (e.g. direction to attend a disciplinary meeting, written warning, letter of termination, etc) available as part of our subscription packages.

 

 

About HR Connect

HR Connect is one of Australia’s leading providers of HR & workplace safety advice services, designed to help small business owners make confident and compliant business decisions.

 

Disclaimer

The information provided in these knowledge base articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact HR Connect for advice. The information in this summary is correct as of August 2021.

 

This knowledge base article will change over time, as Modern Award legislation relating to this Industry or Occupation is passed by the Fair Work Commission. Originally published on 21 September 2021 and last updated on 18 February 2022.

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