With the Easter public holidays approaching, now is a good time to re-visit public holiday pay. Many employees take this time to have a well-earned break, however, many employers will face a challenging month of managing their employees’ entitlements as well as ensuring there is enough coverage during their operating hours.
Payment for public holidays – absent on a public holiday
Under the National Employment Standards (NES), an employee that has ordinary hours that fall on a public holiday is entitled to be absent on the public holiday and to be paid for these hours at the employee’s base rate of pay.
Employers may request employees to work on a public holiday – the matters to consider when requesting employees to work on a public holiday are outlined below.
The “base rate of pay” of an employee is the rate of pay payable to the employee for his or her ordinary hours of work, but not including any of the following:
- incentive based payments and bonuses;
- monetary allowances;
- overtime or penalty rates; and
- any other separately identifiable amounts
If an employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under the NES. For example, an employee would not be entitled to payment if they are:
- a casual who is not rostered to work on the public holiday; or
- a part-time employee whose part-time hours do not include the day of the week on which the public holiday occurs.
Payment for public holidays – work on a public holiday
Public holiday penalty rates can differ under awards but usually the rate is double time and a half. For specific advice on the public holiday rate for the award that covers your employees, please call the Ai Group Workplace Advice Line.
Substituting public holidays
An employer and an employee can agree to substitute a public holiday for another day. If agreement is reached to substitute a public holiday, then the substitute day is regarded as the public holiday and penalty rates are paid on the substitute day.
It is recommended that any agreement to substitute a public holiday is in writing.
Reasonable requests/refusals to work on a public holiday
The public holiday entitlement is subject to an employer’s right to request that an employee work on a public holiday if the request is reasonable. An employee, however, does retain the right to refuse such a request if the refusal is reasonable in the circumstances.
The NES sets out a few considerations to determine whether a request to work or a refusal to work is reasonable. These include matters such as:
- the nature of the work performed;
- the employee’s personal circumstances, including family responsibilities;
- whether or not there is a reasonable expectation that the employer may request the employee to work on a public holiday;
- whether or not the employee is entitled to receive penalties for working on a public holiday;
- the type of employment, for example, part-time or full-time;
- the amount of notice given by the employer requesting the employee work on a public holiday;
- the amount of notice given by the employee in refusing such a request; and
- any other relevant factors.
Unscheduled absence on the day before or after a public holiday
The Fair Work Act (the FW Act) and the NES make it clear that employers can require notification from employees of any absence and evidence to support any personal/carer’s leave they wish to take.
However, there is no ability under the FW Act for employers to deduct payment for a public holiday to deter employees from being absent on the day or days adjacent to a public holiday.
Despite this there are several options available that may help reduce or control the issue.
Notification and evidence requirements
Under the FW Act an employee is not entitled to personal leave unless they:
- notify their employer as soon as practicable that they will not be at work and the expected period of the absence; and
- must, if required by the employer, give the employer evidence that would satisfy a reasonable person.
Employees should be required to contact their manager or supervisor if they are unable t come to work for any reason, unless it is impractical for them to do so. The notification should occur prior to the employee’s normal start time, or as early as possible.
Managers should ensure they follow up on any absence and, where necessary, seek the relevant evidence required. Common forms of evidence include a medical certificate or statutory declaration. It is important that the organisation sets out in a policy and/or contract of employment what documentation is expected.
Public holiday falling during annual leave or personal/carer’s leave
Employers are often unsure of how public holidays interact with personal/carer’s leave and annual leave.
Basically, the NES provides that an employee is considered not to be on annual leave or personal/carer’s leave if it includes a day or part-day that is a public holiday.
Therefore, if a public holiday falls during a period of annual leave, it is not to be treated as a day of annual leave. This means that annual leave hours will not be deducted from the employee’s leave accrual with respect to that day.
If an employee is absent from work on a public holiday due to being unfit for work due to personal illness or injury, the day will be paid as a public holiday, not personal leave. The same will apply if the employee is absent and meets the requirements for carer’s leave.
Easter holidays for all states and territories
The Easter holidays is a popular period for employees wanting to take annual leave, due to the high number of public holidays. The table below lists the Easter public holidays across Australia.
Further advice or assistance
Our workplace advisers are standing by and ready to answer your questions. For further advice or assistance on this topic, or any workplace relations matter, please call us on 1300 862 217, 8:30am – 5:30pm Monday to Friday.