Public Holidays
Public holidays form part of the National Employment Standards (NES) that every employer is bound by. In addition to the NES, employees are governed by an award or registered agreement or another legal instrument. The NES allows an employee to be absent from work on a public holiday and to be paid for it. An employer may reasonably request an employee to work on the public holiday, but the employee has a right to refuse the request.
Public Holidays Worked
If the employee works on a public holiday, they should be paid public holiday penalty rates or provided with an acceptable alternative. Awards and agreements differ in the treatment of working on public holidays. Some awards state that a worked public holiday must be paid accordingly. Others allow for substitution of another day off in lieu of the public holiday.
An employer may not coerce an employee into substituting a day in lieu if the employee wishes to be paid penalty rates. If an employee normally works overtime on a day of the week that a public holiday falls on, the employee is only due to be paid ordinary hours for that day. They would not be due to be paid the overtime they have missed out on.
Public holidays during leave
Public holidays that fall during a period of paid leave are always paid as normal work days; they should not be taken as annual leave days. If an employee usually works a given number of ordinary hours and overtime hours, then they will be paid only for the ordinary hours on a public holiday, they will not be paid for the usual overtime hours. If a public holiday falls during a period of agreed unpaid leave, the public holiday is not paid.
Public Holidays Worked Interstate
If an employee is required to work interstate on a day that would be a public holiday in their usual state of employment, this must be recognised as a worked public holiday, even if the state being visited is not observing the same public holiday.
Can you ask an Employee to Work on a Public Holiday?
An employer may request an employee to work on a public holiday if it is “reasonable”, and an employee may refuse a request if it is “reasonable” according to Fair Work.
Factors to consider:
- The nature of the employer’s business and operations
- The nature of the work performed by the employee and the basis of employment
- The employee’s personal circumstances and family responsibilities
- The amount of notice given to the employee in requesting them to work the public holiday and/or the notice given by the employee of refusal to work
- Any agreements in place that reflect an expectation of working on public holidays
- Costs to the business and negative impacts on efficiency
- Productivity and customer service
- Capability of other existing staff
- General practicality of accommodating the request
Paydays on Public Holidays
You will need to consult the relevant award to see if there is particular provision for this scenario. In most cases, if payday falls on a public holiday then payment can be made on the next business day. The Fair Work Act is silent on this issue. If the day the employee will receive the wages is going to be later than usual, best practice is to notify the employees in writing well in advance.