This article was originally posted on 1 October 2019. The information has been updated to reflect any changes, along with upcoming public holidays in 2022.

We answer the top six common questions that arise in the workplace regarding public holidays including pay, leave & entitlements.

 

Six common questions about public holidays

  1. When are some upcoming public holidays?
  2. There’s a public holiday coming up, are my employees entitled to a day off?
  3. Can I ask my employees to work on a public holiday?
  4. Do employees get paid for public holidays that they don’t work?
  5. What rate do I pay employees who work on a public holiday?
  6. How do public holidays affect personal leave and annual leave?

 

When are some upcoming public holidays?

A full list of national & state-based public holidays can be found here and this is routinely updated from time to time.

 

There’s a public holiday coming up, are my employees entitled to a day off?

The Fair Work Act 2009 (Cth) (FW Act) at section 114 outlines the basic position that an employee is entitled to be absent from work on public holiday. However, an employer can require an employee to work on a public holiday where that requirement is reasonable.

 

Can I ask my employees to work on a public holiday?

The entitlement to public holidays forms part of the National Employment Standards (NES). On public holidays, employees can be absent and be paid for their ordinary hours of work. Employees can be required to work on a public holiday provided the requirement is reasonable. To determine what is reasonable, there are a number of factors to consider, including the needs of the business, the kind of work they do, whether they will receive additional pay (ie penalty rates), and personal circumstances such as carers responsibilities. For all of the factors see our Public Holiday Knowledge Base article. Employees can refuse a request to work on a public holiday if it is reasonable or if the Employer’s request is unreasonable. 

For a business that routinely opens on a public holiday, it will usually be reasonable for the employer to require an employee to work on a public holiday, especially when the employee has been given advance notice (for example, if the requirement to work public holidays was made clear to the employee when they were offered the job). A refusal by an employee may be reasonable where an employee has notified an employer in advance, they will not be able to work on a particular public holiday because of family commitments.

The FW Act lists a number of factors that must be taken into account when considering if a requirement to work on a public holiday would be reasonable:

  1. The nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;
  2. The employee’s personal circumstances, including family responsibilities;
  3. Whether the employee could reasonably expect that the employer might request work on the public holiday;
  4. 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;
  5. The type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork);
  6. The amount of notice in advance of the public holiday given by the employer when making the request;
  7. The amount of notice in advance of the public holiday given by the employee when refusing the request; and
  8. Any other relevant matter.

For a business that routinely opens on a public holiday, it will usually be reasonable for the employer to require an employee to work on a public holiday, especially when the employee has been given advance notice (for example, if the requirement to work public holidays was made clear to the employee when they were offered the job).

 

Do employees get paid for public holidays that they don’t work?

The basic position under the NES is that full and part-time employees are entitled to be paid their base rate of pay for the ordinary hours they would have worked, had it not been for the public holiday. Part-time employees whose regular hours do not include the day of the week on which the public holiday falls are not entitled to payment. Similarly, casual employees are not entitled to be paid when they are not rostered on a public holiday.

However, some Modern Awards provide for different rules regarding absence on public holidays. For example, clause 38.3 of  Restaurant Industry Award 2010 provides that where a public holiday falls on a full-time employee’s day off work they must either be (a) be paid an extra day’s pay; (b) be provided with an alternative day off within 28 days, or (c) receive an additional day’s annual leave.

For the upcoming Easter public holidays, such as Good Friday, this would mean that a full-time employee under the Restaurant Award will still be entitled to receive one of the above provisions even if they would never normally work on Fridays.

Similarly, Clause 35.3 of the Hospitality Industry (General) Award 2020 has these same provisions for full-time staff.

 

Are you an employer and still have questions about public holidays?

 

What rate do I pay employees who work on a public holiday?

Modern Awards or Enterprise Agreements set out the entitlements for working on a public holiday. Generally, employees are entitled to be paid penalty rates for the hours worked on a public holiday.

However, it is important to check the terms of the Modern Awards or Enterprise Agreement carefully as they may contain additional benefits for employees in respect of public holidays. For example, that they must be provided with an alternative day off when they work on the holiday or that they are entitled to be paid for a public holiday even if it falls on a day they do not usually work. 

 

How do public holidays affect personal leave and annual 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 during an employee’s 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).

 

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