With Christmas fast approaching it’s getting to that time of year again where there are almost as many public holidays in the calendar as there are Christmas cards arriving on your doorstep.

Here are a list of the national and State/Territory-wide public holidays coming up (note that this does not include region specific public holidays for show days, etc):

  • Monday 5 November 2018: Recreation Day, Tasmania
  • Tuesday 6 November 2018: Melbourne Cup Day, Victoria
  • Monday 24 December 2018: Christmas Eve (Part Day Public Holiday – South Australia & Northern Territory)
  • Tuesday 25 December 2018: Christmas Day, National
  • Wednesday 26 December 2018: Boxing Day, National except South Australia
  • Wednesday 26 December 2018: Proclamation Day, South Australia
  • Monday 31 December 2018: New Year’s Eve (Part Day Public Holiday – South Australia & Northern Territory)
  • Tuesday 1 January 2019: New Year’s Day, National

With all a number of public holidays at this time of year, it’s a good time for employers to remind themselves of how the law operates in this area. We set out some common questions and answers below.

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.

When is it reasonable to require an employee to work on a public holiday?

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?

If an employee would have ordinarily worked on a day that is a public holiday, the FW Act provides that they are to be paid their base rate of pay for the ordinary hours they would have worked.

The FW Act makes clear that part time employees whose regular hours do not include the day of the week on which the public holiday falls, are not entitled to be paid anything for a public holiday that falls on that day.

Similarly, casual employees are not entitled to be paid anything when they are not rostered on a public holiday.

However more favourable conditions can be included in an enterprise agreement or modern award (see section on awards and enterprise agreements further in this article).

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

For employees covered by a modern award or enterprise agreement, the award or agreement should set out the rate which the employee should be paid. These usually provide that an employee will be entitled to an increased rate (e.g. double-time-and-a-half) and may contain rules about the minimum number of hours an employee can be required to work.

For employees not covered by an award or enterprise agreement, employers should review whether the employee’s contract of employment contains any clauses providing for enhanced rates of pay.

Remember to check your modern award or enterprise agreement for any other relevant obligations.

Some awards provide for 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 (“sick leave”) and annual leave?

The entitlement to public holidays is separate to an employee’s entitlement to personal leave and annual leave. This means if a public holiday falls on day during an employee’s period of annual leave or personal leave (and the employee would have 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.

Need help?

Not sure which award covers your employees or what your obligations are regarding public holidays? At Employment Innovations, we have a team of industry experts who can assist you with these tricky questions. You can also access unlimited workplace advice as part of our subscription products and ensure your pay rates are always in compliance with the relevant law through using our payroll services.