With a couple of public holidays fast approaching
- The King’s Birthday on 23 September in WA (some regional areas in WA hold the King’s Birthday public holiday on a different date);
- The AFL Grand Final in Victoria on 27 September;
- Labour Day on 7 October for NSW, ACT and SA; and
- The King’s Birthday on 7 October for QLD,
below is a reminder of what public holidays mean in the workplace.
Working on a Public Holiday
Award and Agreement covered employees
If your employees are covered by a Modern Award or an Enterprise Agreement, that Award or Agreement will provide the entitlements for working on a public holiday.
Most Awards and Agreements 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 in the employment contract, an employer and an award-free (or agreement-free) employee can agree that the employee will work on a public holiday. No public holiday penalties apply nor is there a requirement for the employer to provide another paid day off instead, unless stated in the employee contract.
What if an employee does not work on a public holiday?
If a full or a part time employee is absent from work on a public holiday, the employer must pay the 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, a part time 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 a Thursday or only works between Friday – Wednesday).
What if my employee is on leave during a public holiday?
The Fair Work Act 2009 (Cth) 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 the employee would usually work.
An employee is not paid for public holidays if they are on any unpaid leave, such as unpaid parental leave or leave without pay.
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 Thursday and Friday and is on long service leave over the Anzac, their leave would be extended by one day. 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. Most Modern Awards contain a provision that an RDO, that falls on the same day as a public holiday, will either get an extra day’s pay, a substitute day off on an alternative week day or an extra day of annual leave.
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 are 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 and 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.
What public holidays remain for 2024?
Below are the upcoming public holidays for 2024 under the NES:
- 7 October (for NSW, ACT and SA only)
- 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 as a public holiday within a State or Territory.
You can find a full list of public holidays for each State and Territory on the Fair Work Ombudsman’s Public holidays page.
If you need further information or assistance, please contact BetterHR’s experienced HR consultants, and qualified lawyers on 1300 659 563 or visit: Subscribe to BetterHR.
