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The Prime Minister has confirmed the news that Australia will have a one-off national public holiday on Thursday 22 September 2022 in memory of the late Queen Elizabeth II.

What does this mean for employers and employees?

Employees don’t have to work on a public holiday.

However, 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.

Determining whether requests and refusals are reasonable are based on the nature of the work and workplace, personal circumstances, expectations of being asked to work and if applicable, overtime entitlements that reflect that expectation, type of employment (eg full time, casual), and notice given by both parties.

The following need to be taken into account when deciding if a request is reasonable:

  • the employee’s personal circumstances, (for example family responsibilities)
  • whether the employee will get more pay (for example penalty rates)
  • the needs of the workplace
  • the type of work the employee does
  • whether the employee’s salary includes work on a public holiday
  • whether the employee is full-time, part-time, casual or a shift worker
  • how much notice the employee was given about working
  • the amount of notice the employee gives that they refuse to work.

When requesting that an employee work on a public holiday, employers need to consider all relevant circumstances, including the ones listed above.

What if an employee refuses to work?

Employees must communicate and explain their reasons to refuse to work on a public holiday. The Fair Work Commission has held that even if employees have good reasons for refusing to work on a public holiday if those reasons are not communicated and explained to their employer their refusal to work will not be reasonable despite them being valid.

Can you terminate an employee for refusing to work on a public holiday?

A refusal to work on a public holiday in itself is not reasonable grounds for dismissal.

Can employees substitute the public holiday for another day?

Whether an employee can request to substitute a public holiday for another day will depend if their employment falls under a modern Award, and if that Award contains a clause that allows the flexibility if both the employer and employee agree. If a modern Award does not contain such a clause, it will not be allowed.

An employer and an award and agreement free employee can agree that the employee will work on a public holiday and take another paid day off instead.

What do I pay my employees on a public holiday?

Full-time and part-time employees who don’t work on a public holiday are paid their minimum pay rate for the ordinary hours they would usually work on that day.

Employers should consult the applicable modern Award or registered agreement for applicable public holiday penalty rates for employees who work on a public holiday.

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