Apr 1st, 2022
Given that the month of April will be flush with multiple public holidays – those for Easter, and then Anzac Day on the 25th – its important for employers and employees alike to be aware of public holiday entitlements.
This article will examine some common areas when it comes to public holidays.
Section 114 of the Fair Work Act 2009 states an employee is entitled to be absent from their employment the day or part-day of a public holiday, and receive their base rate of pay. An employee’s base rate of pay will not include incentive-based payments and bonuses, loadings, allowances, or overtime or penalty rates.
The key thing to remember is that an employee will receive payment for their ordinary hours. Barring some exceptions for certain award and agreement -covered employees, if a permanent employee does not have ordinary hours on the day of the public holiday, they will not receive payment for the public holiday.
However, an employer can reasonably request an employee attend the workplace on a public holiday. This reasonableness of this request will depend on the following factors:
- The nature of the employer’s workplace
- The nature of the work performed by the employee
- The employee’s personal circumstances (including caring responsibilities)
- Whether the employee could reasonably expect that the employer might request they work on a public holiday
- Whether the employee is entitled to overtime payments, penalty rates or any other type of remuneration that reflects an expectation to work on public holidays
- Type of employment (full-time, part-time, casual)
- The amount of notice in advance provided to the employee (and vice versa if the employee is refusing the request to work on a public holiday)
- Any other relevant matter
No one single factor will determine if the request to work is reasonable, but some factors may hold more weight. For example, if someone works in the emergency department of a veterinary hospital, it would likely be considered more reasonable to request they work on the public holiday. On the other side of things, if the request to work on the public holiday is quite last minute, and the employee has caring responsibilities, it may not be a reasonable request. As such, an employee could reasonably refuse it.
Employees covered by an award or agreement may also have public holiday penalty rates that apply to work performed on a public holiday, and minimum engagement periods may also exist for certain employees. We recommend that employers review any relevant awards/agreements to see if these factors, and any others, pertain to them.
It is important to also note that if an employee is not required to work their ordinary hours on the public holiday, it will still count as part of their ordinary hours of the week. This factor sometimes trips up some employers. To put it clearly, if a full-time employee (performing 38 hours) is not required to work on the public holiday, and they work an additional shift on another day, this will take them beyond 38 ordinary hours in the week and may incur overtime penalty rates for those covered by awards or enterprise agreements.
In addition, employer and employee can agree to substitute a public holiday, such that they work on the public holiday and treat another day as the public holiday instead. However, this must occur upon the genuine agreement of both parties.
Lastly, its important to remember that public holidays allow for employees time to enjoy celebrating the public holiday, or in commemoration, as per ANZAC Day, and spend time with loved ones. Not requiring employees to work on public holidays does help foster a greater sense of work/life balance, and better manage any burnout and workplace stress, which are important quality of life and work (occupational) health and safety obligations.
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