It can be challenging working out when and how public holidays are paid especially when employees are working in different states or territories.
RECENT DECISION: Employers must ask employees to work on a public holiday
On 28 March 23023, in the CFMMEU v OS MCAP Pty Ltd [2023] FCAFC 51 case, the Federal court stated that employers must make a request with their employees to work on a public holiday. As such, employer can no longer rely upon contractual requirements or ordinary rostering under Modern Awards or Agreements in order to have employees work public holidays.
An employer however, can still require an employee to work on a public holiday if the employee’s refusal is unreasonable given the nature of the work, reasonable employer expectations, the type of employment and the level of pay.
Employers relying upon contractual obligations or rostering under Modern Awards or Agreements for the upcoming Easter holidays will need to ensure communications are issued to employees confirming that any roster to work is a request to work that can be refused by the employees. The communication should also indicate that the roster is, in effect, in draft until any responses to the request have been received.
What are the Public Holidays in April 2023?
Australian Capital Territory, New South Wales, Queensland, Victoria and Northern Territory
- Friday 7 April – Good Friday
- Saturday 8 April – Easter Saturday
- Sunday 9 April – Easter Sunday
- Monday 10 April – Easter Monday
- Tuesday 25 April – Anzac Day
South Australia
- Friday 7 April – Good Friday
- Saturday 8 April – Easter Saturday
- Monday 10 April – Easter Monday
- Tuesday 25 April – Anzac Day
Tasmania
- Friday 7 April – Good Friday
- Monday 10 April – Easter Monday
- Tuesday 11 April – Easter Tuesday – generally Public Service only
- Tuesday 25 April – Anzac Day
Western Australia
- Friday 7 April – Good Friday
- Sunday 9 April – Easter Sunday
- Monday 10 April – Easter Monday
- Tuesday 25 April – Anzac Day
Working on a Public Holiday
Award and Agreement covered employees
If your employees are covered by an Award or Agreement, that Award or Agreement will provide the entitlements for working on a public holiday.
Most Awards and Agreements will provide that an employee working on a public holiday will be entitled to:
- public holiday penalty rates
- an extra day off or extra annual leave
- minimum shift lengths for working on a public holiday
- agreement to substitute a public holiday for another day.
Award and Agreement-free employees
Unless stated otherwise under an employment contract, an employer and an award or agreement-free employee can agree that the employee will work on a public holiday and take another paid day off instead.
What if an employee does not work on a public holiday?
If an employee is absent from work on a public holiday, the employer must pay the employee (other than a casual employee) the base rate of pay for the employee’s ordinary hours of work on that day. The base rate of pay excludes incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates, or any other separately identifiable amounts.
However, an employee is not entitled to payment if they do not have ordinary hours of work on the public holiday (eg if the employee does not work on the Saturday or Sunday or only works Tuesday – Thursday).
What if my employee is on leave during a public holiday?
The Fair Work Act (s116) states that if an employee takes annual or sick leave they are still entitled to be paid for a public holiday if it falls on a day or part day the employee would usually work.
An employee is not paid for public holidays if they are on authorised unpaid leave such as unpaid parental leave.
For employees who are on long service leave, their leave is usually extended for each day they would normally work that falls on a public holiday. For example, if a New South Wales employee normally works on Fridays and Mondays and is on long service leave over Easter, their leave would be extended by two days.
This rule for long service leave applies in most states, except for South Australia and the Northern Territory.
Sometimes, employees may not attend work either the day before or after a public holiday (eg due to personal leave).
No modern award contains terms which permit an employer to deduct payment for a public holiday where the employee is absent the day before or after the public holiday without reasonable excuse.
While an unauthorised absence may be grounds for taking disciplinary action, an employee would still be entitled to payment for a public holiday that falls on a day the employee normally works.
What if a rostered day off (RDO) falls on a public holiday?
Some employees (full-time or part-time) may have an RDO that falls on a public holiday. Employers will need to check the relevant award or enterprise agreement to see if payment or other arrangements are required.
What to do if employees usually work a ‘Short Day’ Friday
Where an employee works four eight-hour days and a shorter six-hour day on a Friday, and a public holiday falls on a Friday, they will be paid for 6 hours public holiday pay for the Friday. Which is the ordinary hours the employee would normally work on that day.
What if an employee refuses to work on a public holiday?
An employer can ask an employee to work on a public holiday, if the request is reasonable. An employee may refuse a request to work if they have reasonable grounds.
The following need to be taken into account when deciding if a request is reasonable:
- the employee’s personal circumstances (like their family responsibilities)
- whether the employee will get penalty rates or additional compensation that reflects the expectation to work on a public holiday
- the needs of the workplace
- the type of work the employee does
- whether the employee’s existing employment contract and salary includes work on a public holiday
- whether the employee is full-time, part-time, casual or a shiftworker
- how much notice the employee was given about working
- the amount of notice the employee gives that they refuse to work.
- whether the employee could reasonably expect the employer might request work on the public holiday.
When requesting that an employee work on a public holiday, employers need to consider all relevant circumstances, including the ones listed above.
If an employee refuses to work on the requested public holiday, they must explain their reasons for refusing the request. Otherwise, the refusal may not be considered reasonable, even if the employee has good reasons for not wanting to work.
What if my employee is working outside our state or region on a public holiday?
An employee is entitled to public holidays depending on where they are based for work not where they are working on the day of the public holiday.
Example: Jane’s job is based in Melbourne Victoria. She travels for work to Tasmania over the Easter break. Jane will be entitled to payment on Easter Saturday which is a public holiday in Victoria even though it is not a public holiday in Tasmania
Need help?
If you have any questions about public holidays or how it is paid in accordance to a modern award, agreement or contract, please contact the BetterHR advice team.
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