10 Common Questions About Public Holidays 2023

This article was originally posted on 1 October 2019. The information has been updated to reflect any changes, along with upcoming public holidays in 2023.

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

Ten common questions about public holidays

When are some upcoming public holidays?
There’s a public holiday coming up, are my employees entitled to a day off?
Can I ask my employees to work on a public holiday?
Do employees get paid for public holidays that they don’t work?
What rate do I pay employees who work on a public holiday?
How do public holidays affect personal leave and annual leave?
Can I swap my public holidays over Easter?
What does the employee’s award say?
What if they aren’t covered by an award?
Can my employees decline to swap the public holiday?

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:

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.

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.

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).

Can I swap my public holidays over Easter?

There are many reasons why an employee may request to not recognise a certain public holiday or why an employer may request an employee to swap a public holiday. Easter can be a busy and expensive time of year to go away, employees may prefer to take a break in the year. Alternatively, they may prefer to take time off on another religiously significant day that aligns with their beliefs. It can also be a costly period for employers to stay open, with many businesses in the Hospitality industry electing to close during the period as a result.

This leads to the question, if my employee wants to work over Easter and swap the public holidays for another day, can they? However, there are several rules that businesses will firstly need to consider before facilitating such a request – it may not be as simple as the swapping the days.

What does the employee’s award say?

Modern Awards and Enterprise Agreements (EA) will typically detail if and how an employee can request to substitute a public holiday for another ordinary day. If the award or EA permits public holidays to be substituted, the employer and employee could agree to swap the Easter public holiday(s) with another day. Meaning that the Easter public holiday will instead be treated as an ordinary day/non-public holiday and the newly elected day will instead be a public holiday. When doing so, it is recommended that the business gets this agreement in writing.

Employers should refer to the employee’s EA or award to confirm if this is allowed and if there are any specific requirements when doing so.

Where the award or agreement is silent on the ability to substitute a public holiday, unfortunately, the business will be unable to come to this arrangement with the employees – even if this is something that they are requesting. Therefore, if an employee is wanting to work on a public holiday, they would be entitled to receive the applicable penalty rates according to the award or EA’s provisions. If the employer had also agreed for the employee to have an alternative paid day off, this would be considered an additional benefit and wo

What if they aren’t covered by an award?

The National Employment Standards (NES) allows an employee to come to a mutual agreement with their employer to substitute a public holiday for another day. Therefore, if you have an employee isn’t covered by an award or EA, you can still come to an agreement to swap the public holiday(s).

Can my employees decline to swap the public holiday?

The Easter period can be an expensive time for businesses to operate and it can be common for employers to request for their employees to swap the public holidays to facilitate with costs. Employers can’t force or pressure an employee to substitute a public holiday for another day it would need to be by mutual agreement. If an employer requests for their employees to swap the Easter public holidays and they decline, it isn’t something that the business can direct them to do.

Employees who elect not to swap the public holidays must also not be subjected to any adverse action because of their decision. For example, demotion, reducing their hours or termination because they have exercised this right.

You can look to the following Fair Work article which provides a summary of the above.

About Employment Innovations

Employment Innovations is one of Australia’s leading providers of employment services designed to increase productivity and ensure compliance. Its services and solutions include all the tools that every Australian small to medium-sized employer needs – including workplace advice, legal services, payroll solutions, migration, human resource management and HR software.

Have a question? Contact one of our HR, Payroll, Migration or Employment Law experts today.

Ten Common Questions About Public Holidays in 2023