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Common employer complaints about public holiday entitlements

Leave entitlementsAugust 12, 2016

Common employer complaints about public holiday entitlements (Last Updated On: March 7, 2019)

Before Christmas is here and during this public holiday lull, there is no better time to brush up on your obligations to employees. What if you need employees to work and what do you have to pay them if they do work?

What days are public holidays?

The Fair Work Act sets out the key public holidays, but also recognises any other day declared by a state or territory as a public holiday, or as a substituted public holiday.

When your employees are absent because of a public holiday, you must pay them for their usual hours of work on that day (not applicable to casuals). You do not need to pay anything to an employee who does not usually work on the day the public holiday falls, but you cannot temporarily alter rosters to try and avoid paying public holiday pay.

There may also be restrictions on retail trading hours on Christmas Day and Boxing Day. More information can be obtained through the relevant state and territory government websites.

Asking employees to work on public holidays?

If your request is reasonable, you can ask an employee to work on a public holiday. The employee can only refuse if it is reasonable or if your request is unreasonable. To determine what is reasonable, you need to consider:

–      their personal circumstances, eg family responsibilities

–      whether they will get more pay, eg penalty rates

–      the needs of the business

–      the type of work they do

–      whether their salary includes public holiday work

–      whether they are full-time, part-time, casual or shift worker

–      the amount of notice you gave them about working

–      the amount of notice they gave you about not working

What are employees entitled to receive if they work on a public holiday?

The modern awards or enterprise agreements applicable to your business and the employee will set out their entitlements when they work a public holiday. Generally, employees are entitled to be paid penalty rates for the hours worked on a public holiday.

Awards and agreements can also provide additional entitlements or requirements when employees work on public holidays, such as:

–      an extra day of annual leave

–      the ability to agree to substitute the public holiday for a different day

–      a minimum number of hours of employment on the public holiday

–      regulations around RDOs which fall on a public holiday

An employee’s contract of employment may also provide for additional entitlements or higher pay rates on a public holiday, but they cannot remove or reduce the entitlements under the Fair Work Act, award or enterprise agreement.

Public holidays falling during periods of leave

If a public holiday falls during paid leave, eg annual leave or personal leave, then you must pay the employee for the public holiday. They do not use their accrued annual leave on the public holiday.

In some circumstances when a public holiday falls during unpaid leave, you generally do not have to pay for it.

Christmas shutdown

If you are planning a shutdown or skeleton staff over the Christmas period and have not already provided notice to your employees, you should do so as soon as possible. Most awards and agreements allow you to direct employees to take annual leave during a Christmas shutdown but normally require you to provide a minimum amount of notice in advance.

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What should you do?

Please ensure you check the provisions of the awards or agreements which apply to your business and employees, along with their contracts of employment for any terms relevant to a public holiday.

If you have any questions, Employsure advisers are always available to help – even on public holidays.  For peace of mind, please call our specialist Advisers on 1300 651 415.

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