Is your business prepared for the Easter public holidays?

The Easter holiday period is always a popular period for leave requests, with many employees seeking to take advantage of the number of public holidays. This leaves employers with the challenge of balancing their employees’ leave requests as well as ensuring there is enough coverage during their operating hours.

Easter holidays for all states and territories

Payment for public holidays

An employee that has ordinary hours that fall on a public holiday is entitled to be paid for these hours with payment made at the employee’s base rate of pay.

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
• loadings
• monetary allowances
• overtime or penalty rates
• 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 National Employment Standards (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.

Modern awards may provide a penalty rate for working on a public holiday, which is typically double time and a half.

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 number of 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.

Can the business shutdown over Easter and what are the requirements that need to be followed?

Good Friday will occur on Friday 29 March 2024, followed by Easter Saturday on 30 March in every state except for Tasmania and Western Australia. Easter Monday will occur on Monday 1 April 2024.

By agreement between employers and employees, annual leave can be taken. If agreement cannot be reached, a modern award may permit the employer to direct employees to take annual leave as part of a temporary shutdown. Employers should check the terms of the relevant modern award but generally, an employer seeking to direct employees to take annual leave for a shutdown must give employees 28 days written notice of the shutdown.

If a direction is given, the employees must take annual leave. If the employee does not have enough annual leave to cover the shutdown period, there can be written agreement for the employee to take leave without pay.

Can a public holiday be substituted for another day?

The relevant modern award may allow for the substitution of public holidays by mutual agreement between the employer and employee.

This means that if an agreement is reached, the Easter Saturday public holiday on Saturday 30 March 2024 can be substituted for another working day. The employee who agrees to substitute the public holiday will be paid their normal rate of pay for any work performed on this date.

Example:

Zoe is a full-time employee who normally works Tuesday – Saturday.

Zoe reaches an agreement with her manager to substitute the Easter Saturday public holiday on Saturday 30 March 2024, and treat Tuesday 2 April 2024 as the substitute public holiday.

This means that Zoe will work on Saturday and be paid for her normal working hours at her usual rate of pay. Tuesday 2 April 2024 is treated as the public holiday and Zoe will have this date as her day off.

Any agreement to substitute a public holiday should be documented in writing. Appendix A contains a sample letter for use.

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 leave they take.
However, there is no provision within 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.

Except where it is impractical to do so, employees should be required to contact their manager or designated person if they are unable to come to work for any reason. 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. Most commonly this would be 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. This information may also be contained within an enterprise agreement.

Public holiday falling during annual leave or personal/carer’s leave

Employers are often unsure of how public holidays interact with paid personal/carer’s leave and annual leave.

Basically, the NES provides that an employee is considered not to be on annual leave or paid 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 annual leave. If an employee is absent from work on a public holiday during a period when they are entitled to paid personal leave, 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 paid carer’s leave.