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Working on a public holiday

What are employers rights and responsibilities with regard to staff on a public holiday?

Can I ask my staff to work on a public holiday?

The National Employment Standards (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.

Can a public holiday be substituted for another day?

If, under the law of a State or Territory, a day or part-day is substituted for any public holiday or part-day, then the substituted day or part-day is the public holiday.

An award or agreement may include provisions for an employer and employee to agree to substitute the public holiday or part-day for another day or part-day. Furthermore, an employer and an award/agreement-free employee may agree to substitute the public holiday or part‑days for another day or part-day.

An employer must not exert undue influence or pressure on an employee in relation to agreeing to substitute a public holiday for another day or part-day.

What are reasonable grounds for requesting or refusing to work on a public holiday?

In determining whether a request (or a refusal of such a request) to work on a public holiday is reasonable, the following must be taken into account:

  • the nature of the employer’s workplace (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, additional remuneration or other compensation that reflects an expectation of work on the public holiday
  • the type of employment (e.g. 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 in refusing the request

What payment is required for an absence from work due to a public holiday?

If an employee is absent from work on a day or part‑day that is a public holiday, the employer must pay the employee (other than a casual employee) the base rate of pay for the employee’s ordinary hours of work on that day or part-day. The base rate of pay to be paid excludes incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates, or any other separately identifiable amounts.

However, an employee is not entitled to payment if they do not have ordinary hours of work on the public holiday.

For example, a part-time employee is not entitled to payment if their part-time hours do not include the day of the week on which the public holiday falls.

 Illustrative example

Stephanie is a full-time employee who usually works overtime in addition to her ordinary hours of work on Tuesdays. She receives penalty rates for these overtime hours under the applicable modern award. Stephanie is absent on the public holiday on Friday, 26 January 2018, and is entitled to her base rate of pay for her ordinary hours. She is not entitled to payment for the overtime hours she would have usually worked had it not been a public holiday.

Stephanie’s colleague, John is a part-time employee who is rostered to work Monday to Thursday each week. As John’s ordinary hours of work do not include Fridays, he is not entitled to payment for the public holiday on 26 January 2010.

If you have any questions regarding this or any other HR issue please contact us.

 

GAP Communications started with a 3-man operation and has now grown into a National Operation of over 300 staff. People Business has been associated with our company on a consulting basis since its inception. During the turmoil of the last six years their guidance has played a crucial and integral part in the successful growth of our company. Adam Clark and his team manage to combine a client first approach to business with a down to earth humanitarian approach to the issues at hand. I can't recommend Adam and his team strongly enough.
Andrew BateyManaging Director, GAP Communications
Ausmelt Limited has approximately 50 professional qualified staff comprising mainly metallurgists and engineers. As a small company, Ausmelt does not have a full time HR Manager, opting to use the consultancy services of Adam Clark and his team. Adam has successfully work hand-in-hand with Ausmelt management to help with staff recruitment, staff development plans, performance planning and assessment, short and long term staff incentive schemes, salary benchmarking, staff termination and redundancy, counselling and job search assistance. I have been more than happy with the level of professionalism, enthusiasm and expertise that Adam and his team has provided to our Company.
Paul AbbotManaging Director, Ausmelt Limited
Adam and his team have delivered an outsourced HR solution to our company for the past 10 years. Adam is a natural fit to our organization and I now consider him part of our senior management team. Once goals are determined he is able to deliver the required outcomes in a timely and professional manner. He provides excellent advice and is always reliable. Adam also handles our recruitment needs which has saved us thousands in agency fees. In summary I would say "Highly recommended".
Rob GreenCEO, CommTel Communications Pty Ltd
Creative Brands has two iconic Australian brands, “Australis” cosmetics and "Le Tan" sunscreens and tanners. As a relatively small company with a staff of 60 we were unable to justify the appointment of a full time HR Manager. As such the flexible and cost effective package offered by People Business represented an ideal fit for our organization. We were able to draw on a comprehensive suite of HR services which were delivered in a professional manner at all times. Taking into consideration both quality and cost I am happy to recommend Adam Clark and his team as a viable and pragmatic HR solution.
Stephen MasonManaging Director, Creative Brands Pty Ltd
Adam and his team have provided an outsourced HR solution to our organisation for 4 years, effectively becoming a part time member of the senior management team, fulfilling all HR requirements typically provided by a Senior HR Manager. Adam successfully recruited around 30 people to our company, a number of which comprised senior and middle management roles. I believe that his business represents a cost effective HR option ideally suited to small and/or growing companies and I have no hesitation in recommending Adam Clark and his team to similar organisations.
Hugh GleesonChief Executive Officer, United Energy and Multinet Gas
I've worked with Adam and his team for over 3 years, developing and implementing an organisational HR System for Stornoway's 50+ permanent staff. As a medium-sized enterprise, I needed cost-effective HR support and someone my staff would be comfortable with. I'm confident that, with their ongoing support, I can continue to meet my HR needs without an in-house specialist.
Tim GardnerGeneral Manager, Stornoway Contracting Pty Ltd
Adam and his team have been facilitating a number of training sessions for City of Port Phillip over the last few years. People Business have always been available to work with me to provide the most relevant, well organised training sessions to meet the diverse needs of our staff.
Leanne BickleyOrganisation Development & Training Consultant, City of Port Phillip
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