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.