Everyone looks forward to a public holiday, but what if you need employees to work and what do you have to pay them if they do work?
Here is the ultimate public holiday guide for business owners.
Overview of Public Holidays
Public holidays form part of the National Employment Standards (NES). The NES provide an entitlement for employees to be absent from work on a day or part-day that is a public holiday.
The NES protect an employee’s workplace right to reasonably refuse to work on a public holiday, and will guarantee payment where an employee is absent from work because of a public holiday. Employees are protected from adverse action for having, using, or seeking to use their workplace right to reasonably refuse to work on a public holiday.
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.
The following days are public holidays under the NES:
1 January (New Year’s Day)
26 January (Australia Day)
25 April (Anzac Day)
Queen’s birthday holiday (the day on which it is celebrated in a State or Territory or a region of a State or Territory)
25 December (Christmas Day)
26 December (Boxing Day)
any other day or part-day declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory (or a region of the State or Territory) as a public holiday.
If one of the days recognised as a public holiday (listed above) is substituted for a different day in a State or Territory, then it is the substituted day which is recognised under the National Employment Standards (NES). Awards and agreements may also supplement the public holidays provided for by the NES.
Public Holiday Payment
When your employees are absent because of a public holiday, you must pay them for their usual base rate of pay for hours worked 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, e.g. family responsibilities
whether they will get more pay, e.g. penalty rates
the needs of the business
the type of work they do
whether the employee could reasonably expect that the employer might request work on the public holiday
whether they are full-time, part-time, casual or shift worker
the amount of notice in advance of the public holiday given when making the request to the employee to work
the amount of notice the employee gave to you in advance of the public holiday refusing the request
any other relevant matter
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 for a rostered day off (RDO) 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.
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.
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 is always available to help. For peace of mind, please call our Advice Line now on 1300 651 415.
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