Public holidays are not just days off for employees; they come with a set of obligations for employer as set out in Fair Work Act 2009 (Cth). In this article, we delve into your obligations under thePublic holidays differ in each state and territory and may ever differ based on your location within the state or territory. We recommend you check the relevant public holidays in your state or territory.
Employees not working on a public holiday
Employees (except casual employees) who normally work on the day a public holiday falls will be paid their base pay rate for the ordinary hours they would have worked if they had not been away because of the public holiday.
The base pay rate doesn’t include:
any incentive-based payments;
bonuses;
loadings;
monetary allowances;
overtime; or
penalty rates.
An employee's roster cannot be changed to deliberately avoid this payment.
An employee is on leave when a public holiday falls. Do they get paid for the public holiday?
If a public holiday falls when an employee is on leave, their entitlement to the public holiday depends on whether they are taking paid leave or unpaid leave.
Paid leave and public holidays
If a public holiday falls during a period of paid leave (for example, annual leave or sick leave), the employee has to be paid for the public holiday. This includes any hours that fall on a part-day public holiday.
However, if the employee is taking annual leave at the same time as unpaid parental leave, they won't be paid for the public holiday.
The public holiday will not be counted as annual leave or sick leave. This means that the public holiday hours will not be taken away from the employee's amount of built-up paid leave.
If an employee takes sick leave either side of a public holiday, they should still be paid for the public holiday if it is on a day that they would normally work. Normal sick leave rules apply for the time taken as sick leave and an employer can ask the employee for evidence that shows the reason they took the leave.
If an employee is rostered to work on a public holiday on a day they don’t normally work, and calls in sick, they don’t get paid for that day.
If an employee is taking long service leave on a public holiday, whether an employee gets paid for the public holiday is set out in the state or territory long service leave legislation.
Unpaid leave and public holidays
An employee isn’t paid for any public holiday that falls during a time when the employee is on unpaid leave.
Can I request that employees work on a public holiday?
Employers can request employees to work on a public holiday, but the request has to be reasonable.
An employee can refuse a request to work if the:
employee has reasonable grounds, or
request is unreasonable.
When deciding if an employee will be rostered to work on a public holiday, employers should consider:
1. the nature of the workplace
2. the role and type of work of the employee does
3. employee’s personal circumstances (including caring responsibilities)
4. employment status (full-time, part-time or casual)
5. an expectation that they might be asked to work on the public holiday
6. any overtime, penalty rates or other payment the employee might receive
7. the amount of notice provided
8. any other relevant factor.
An employer can require an employee to work a public holiday if the:
employer has made a reasonable request for the employee to work the public holiday;
employee has unreasonably refused that request.
Employers should make it clear that they have requested an employee to work and that the request is reasonable. The employer must then consider any response provided by the employee for why they cannot work. If this is reasonable, the employer should consider alternative options.
What are employees paid if they work on a public holiday?
Employees get paid at least their base pay rate for all hours worked on public holidays.
Awards and enterprise agreements can provide entitlements for working public holidays, including:
extra pay (for example public holiday rates)
an extra day off or extra annual leave
minimum shift lengths on public holidays
agreeing to substitute a public holiday for another day.
Example: Clerks – Private Sector Award 2020
Let’s look at an example.
An employee has to be paid public holiday rates for all time worked on a public holiday. For non-shiftworker employees, they must be paid
Type of Employee | % of minimum hourly rate |
Full-time and part-time employees | 250 |
Casual employees
| 275 |
** The overtime rates for casual employees have been calculated by adding the casual loading of 25% to the rates for full-time and part-time employees.
Minimum hours on public holidays
Minimum shifts or payments usually mean that an employee is entitled to be paid for a minimum number of hours per shift, even if they don't work the full shift. Minimum shifts or payments are usually set out in the modern award. For example, the Clerks Award states that an employee (other than shift workers) required to work on a public holiday is entitled to not less than 4 hours’ pay.
Substituting public holidays
An employer and an employee can agree to substitute a public holiday (or part-day public holiday) for another day. If a public holiday is substituted, then the substitute day is regarded as the public holiday and penalty rates are only paid on the substitute day.
If both days are worked, employees can elect to be paid public holiday rates for the actual public holiday or the substituted public holiday, but not both.
DISCLAIMER
The information in the package is intended as a general guide only, not legal advice, and specific legal or HR advice should be sought when necessary.
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