In this article we look at common issues that arise regarding public holidays in the workplace.

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:

  • 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.

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.

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Disclaimer

The information provided in this knowledge base article is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact Employment Innovations for advice.

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