Employees may be absent from work on a public holiday. However, the employer may request that an employee work on public holiday, and the employee may only refuse the request if the request is not reasonable, or if the refusal is reasonable.
Some factors that are taken into account when assessing ‘reasonableness’ include:
- Whether employees are regularly required to work public holidays in the business
- Whether the employee is entitled to receive penalty payments
- The needs of the business
- The employee’s personal circumstances
- The amount of notice the employer gave of the request to work.
There are eight public holidays named in the NES – New Year’s Day, Australia Day, Good Friday, Easter Monday, Anzac Day, Queen’s Birthday, Christmas Day and Boxing Day.
Other days or part days that are gazetted holidays in the relevant State or Territory are also public holidays under the NES. If a State or Territory declares additional days, or substitute days, those become the public holidays for that location.
This can lead to different holidays being observed across the country. For example, Anzac Day falls on a Saturday in 2015. Most States and Territories have chosen to declare only Saturday 25 April as the relevant holiday, while the Western Australian government have gazetted both Saturday 25 April and Monday 27 April as holidays for Anzac Day.
Public holidays can be gazetted for local reasons – as is the case in Victoria, where the State Government went to the 2014 election with a promise to declare a public holiday for the eve of the AFL Grand Final. In all states, it is common for public holidays to be declared for specific localities, e.g. regional Cup Days, and Regatta Days that apply in particular Shires.
WHAT DOES THE TIMBER INDUSTRY AWARD (2010) SAY ABOUT PUBLIC HOLIDAYS?
Under the Timber Industry Award (2010), full-time and part-time employees who work on a public holiday are entitled to payment at the penalty rate of 2.5 times their ordinary rate of pay. Casual employees who work on a public holiday are paid a penalty rate with a three hour minimum engagement.
The Timber Industry Award 2010 contains an unusual provision, requiring that full time employees who work a non-standard week to be paid an extra day’s wages, be given another day off or have a day added to annual leave if a public holiday falls on a day they would not ordinarily be working.
A ‘non-standard full-time week’ is where an employee works an average of 38 hours per week, but they don’t work it over Monday to Friday. So an employee might work 38 ordinary hours over Monday to Thursday – in which case, they would be paid an extra day in lieu of any public holiday that fell on a Friday, Saturday or Sunday.
Employees who work 38 ordinary hours over Tuesday to Saturday, or Sunday to Thursday are also working a non-standard full-time week.
However, the same is not true for part-time employees, who are only entitled to a day off with pay if the public holiday falls on a day on which they would otherwise have been working their ordinary hours. Full-time employees are entitled to the day with payment at their base rate of pay for a public holiday.
HOW DO OTHER MODERN AWARDS TREAT PUBLIC HOLIDAYS?
Also notable is the Road Transport and Distribution Award (2010), which applies to those drivers in the industry who don’t work in the harvesting and forest management sectors. Under this award, any full-time or part-time employee who works on Good Friday or Christmas Day gets paid treble time, and any casual employee gets paid treble time and a quarter.
PLANNED SHUT DOWNS ADJACENT TO PUBLIC HOLIDAYS
Notification of any shut-down of the workplace must be given to the employees at least four weeks before the proposed shut down starts. Often employers will include a general reference to a Christmas shut down in their appointment letters, however, the Timber Industry Award (2010) requires written notification of specific dates.
Employees who have enough accrued annual leave to cover the time must take that leave, exclusive of public holidays. If an employee does not have enough accrued leave to cover the shut-down period, the employee will be paid any leave they have accrued, and will then be on unpaid leave for the remainder of the shut-down period, except for any public holidays that occur during the leave.
It is common for states and territories to regulate when retail shops can open, and when they must close. As a minimum, most shops must be shut on Good Friday and Christmas Day, and between midnight and noon on Anzac Day.
Check your local shop trading laws for more detail.
Emma Watt is an independent industrial relations consultant with almost 20 years’ experience in the timber industry.
Phone: 0411 708 073 or Email: firstname.lastname@example.org