Managing public holidays in a service station environment

The silly season is over but the frustration caused by trying to work out public holiday rates, manage partial shutdowns and shared shifts and ensuring that everyone gets their fair share is still clearly in full swing. ACAPMA has received a lot of enquiries regarding the operation of public holidays as members bed down the Christmas 2015 season and start getting ready for the Australia Day and Easter holiday season. Because of this focus todays HR Highlight is going to look at a series of situations and examples of public holiday payments. In the coming weeks we will explore this area as it applies to fuel transport workers and to support staff, but this week we are going to focus on the service station environment.

Public Holiday – a day off without a loss of income

The principle behind public holidays is that on a special occasion staff are entitled to take a day to celebrate without their base income being effected.

This entitlement is available to employees and is outlined in s115 of the Fair Work Act (FWA), which names; New Years Day (1 Jan), Australia Day (26 Jan), Good Friday, Easter Monday, Anzac Day (25 April), Queens Birthday, Christmas Day (25 Dec), Boxing Day (26 Dec), and any other day or part day proscribed by a State or Territory law to be observed generally as a public holiday.

For retail petroleum outlets, service stations, the Award that covers console operators, driveway attendants, roadhouse cooks and roadhouse attendants is the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (VMRSRA).

Penalty Rates – a little extra to miss out on the celebration

Employers can ask an employee to work a public holiday when its reasonable, and employees can refuse to work a public holiday. However in most cases when they choose to work employees get a little extra payment for missing out on the celebrations.

As per the VMRSRA these rates change depending on the nature of the employment. For casual employees the public holiday rates are outlined in Clause 36. For permanent staff public holiday rates are outlined in Clause 43.3.

“No thanks, I’ll take the day off” – and still get paid

An employee does not have to say yes to a request to work on a public holiday. The public holiday exists so that the employee can take the day and celebrate, and if they choose to do that then they are able to do it without loosing their normal pay or dipping into their annual leave. If an employee choses to take the public holiday then most Awards provide for base ordinary hours for that day to be paid at the base rate.

Under the FWA, an employee who is absent on a day, or part-day, that is a designated public holiday is entitled to be paid at the base rate or “ordinary pay” for the “ordinary hours”.

Ordinary Pay or Base Rate is the ordinary income, excluding incentive-based payments and bonuses, loadings, overtime or penalty rate, monetary allowances, and any separately identifiable amounts. Ordinary hours are the ordinary time hours that are allocated to that staff member on that day.

If the staff member does not usually work that day then their ordinary hours for that day are said to be zero.

Do casuals get paid if they are not working?

A casual is engaged and rostered “as needed” this is seen under the law to be a day by day arrangement. Casuals are offered work, and if they choose to take it they can, and if they choose not to they are under no obligation to.

Because of this distinction casual employees are not said to be “rostered on a public holiday” until they accept to work on that day. For this reason there is no payment to a casual who is not working on a public holiday.

Casuals who do work are entitled to be paid for their time, and different Awards will stipulate different penalty rates, minimum shift lengths etc.

What about Overtime?

As per the VMRSRA Clause 43.5, when required to work overtime on a public holiday, all employees, casual and permanent, are to be paid for a minimum of 3 hours

As per the VMRSRA Clause 43 when a permanent employee works overtime on a public holiday they receive double time for all time worked.

For example; if the ordinary hours were $10 per hour, overtime would usually be $15 per hour. To work out overtime on the public holiday rate you need to simply take the ordinary base rate ($10) and times by 2 to get double time ($20). It is NOT necessary to start with the everyday overtime rate ($15) and then times by 2 ($30).

As per VMRSRA Clause 36 when a casual employee works overtime on a public holiday they receive the public holiday rate PLUS the overtime rate.

For example; if a casual employee does overtime on a public holiday they receive the public holiday rate PLUS the overtime rate for their category of employment and their age, outlined in Clause 36.

Penalty Stacking? Weekends and Public Holiday rates. Do they combine?

The FWA does not outline standardised public holiday penalty rates. These are outlined in the Award. What the FWA and cases do outline is, that when two penalty rates could both apply at the same time, then the penalty that is most favourable to the staff member is the one that is used.

For example if the public holiday in question was a Saturday then the Saturday penalty and the Public Holiday penalty would be compared and the one that is higher is the one that is applied.

For example; if the ordinary pay was $10 per hour penalty rate for Saturday work was time and a half or $15 per hour, and the public holiday penalty was double time or $20 per hour. To work out the amount paid per hour you would start by first comparing the Saturday penalty and the Public Holiday penalty to establish which is the higher – then you would use that. It is NOT necessary to start with the Saturday rate of $15, then apply the public holiday penalty of double time, which would take it to $30 per hour.

It is important to note that certain Awards have differing penalties for different public holidays and for the treatment of public holidays that fall on a weekend, however these different provisions exist to ensure that it is clear that penalties do not “stack”.

What if an employee is on leave on a Public Holiday?

If a public holiday falls on a day that a permanent employee would usually have worked, and that employee is already on paid annual leave, long service leave, or personal or carers leave, then the ordinary hours for the public holiday should be credited back to the employee or the leave extended.

For example; Amy applied for 5 days annual leave, leaving her a balance in her leave entitlement of 20 days. As the business is on a monthly cycle she was then paid in advance for 5 days worth of ordinary hours (40). After the payment was made it was noted that a public holiday fell on the Monday of the leave period, and Amy usually works Mondays. In this case one day (8 hours) leave would be credited back to Amy taking her balance to 21 days. This crediting changes the 8 hours that were paid for that day from annual leave payment to public holiday payment.

The same process applies to personal and carers leave.

In terms of Long Service Leave, whether the leave will be extended based on a public holiday falling in the leave will depend on the State legislation. Credit back or extend leave in QLD, NSW, ACT, VIC, WA. DO NOT Credit back or extend leave in NT, SA, TAS.

If the payroll has not yet been processed then it is a simple matter of changing the allocations, rather than crediting back the leave. The point is that an employee does not miss out on that “paid day off to celebrate” even when they are on leave.

What if an employee is on Workers Compensation on a Public Holiday?

Whether an employee is entitled to be paid both the public holiday taken and the workers compensation amounts will depend on the State legislation that applies.

What if the site or business is shut down on a public holiday or has changed hours?

Many Awards provide for shutdown provisions to come into effect over the Christmas period

VMRSRA 29.9 provides for the business to close-down up to three times a year, with some conditions. During a close-down employees with annual leave entitlements will be paid their annual leave, whereas employees who have not accrued enough annual leave to cover the whole close-down period will be paid annual leave until their accrued entitlement is exhausted. The application of this clause within the Award comes with some specific conditions, and requires the business or workplace to stop trading. Seek further advice before implementing close-down provisions.

Worked Examples

Retail Service Station | Normal Trading hours

The table below explores the different manners that retail staff interact with holidays, noting that permanent and causal staff are different, and that there is a difference in whether someone is rostered to work or not.

As outlined in the table below in this retail example the roster that has the public holiday worked by the casual staff produces a cost to the business of $260.48. However if it is worked by a permanent staff member who is rostered on that day the cost is $305.60, and if the rostered permanent staff member decides to take the holiday then the cost to the business must include their public holiday pay and the pay for the person who ends up working the shift. If the shift is covered by another permanent staff member then the cost to the business will be $458.40, if the shift is covered by a casual staff member then the cost to the business will be $413.28.

NOTE: remember if a casual staff member works overtime on a public holiday then the public holiday and the overtime rate are combined for the overtime hours.

Console Operator
Retail Service Station, normal trading

Permanent
Usually works that day and does work the PH
VMRSRA 43.3.a.iii
[payment for public holiday] + [payment for time worked] [Ordinary time for all ordinary hours] + [Ordinary time for all time worked] [$19.10 x 8 = $152.80] + [$19.10 x 8 = $152.80] = $305.60

Permanent
Usually works that day and does not work the PH
VMRSRA 43.3.a.iii
[payment for public holiday taken] [Ordinary time for all ordinary hours] [$19.10 x 8 = $152.80] = $152.80

Permanent
Does not usually work that day and does work PH
VMRSRA 43.4.a.ii
[payment for public holiday work] [Overtime/outside ordinary hours on a public holiday = double time] [Ordinary time x 2 for all time worked] [($19.10 x 2) x 8 = $305.60] = $305.60

Permanent
Does not usually work that day and does not work the PH
FWA s116
No payment applicable

Casual
Does work PH
VMRSRA 36.3
[payment for public holiday work] [casual public holiday rate proscribed in clause 36.3] [$32.56] [$32.56 x 8 = $260.48] = $260.48

Casual
Does not work the PH
No payment applicable

*Rates correct as at 1/1/2016

Examples

Retail Service Station | Short trading hours

If the business is open for shorter trading hours this will effect the way that you calculate the amount paid to staff. For example if the business is only trading for 4 hours on the public holiday based on anticipated demand then the calculations for time worked will change to reflect the actual time worked. What will not change is the “ordinary hours” for permanent staff…unless there is a shutdown in play – see the Shutdown section for more information.

In the table below we have had a look at the situation of short trading in a retail setting.

As outlined in the table below in this retail example the roster that has the public holiday worked by the casual staff produces a cost to the business of $130.24. However if it is worked by a permanent staff member who is rostered on that day the cost is $229.20, and if the rostered permanent staff member decides to take the holiday then the cost to the business must include their public holiday pay and the pay for the person who ends up working the shift. If the shift is covered by another permanent staff member then the cost to the business will be $305.60, if the shift is covered by a casual staff member then the cost to the business will be $283.04.

NOTE: remember if a casual staff member works overtime on a public holiday then the public holiday and the overtime rate are combined for the overtime hours.

Console Operator
Retail Service Station, usually trades 8 hours, trading only 4 hours on the public holiday due to anticipated demand

Permanent
Usually works that day and does work the PH
VMRSRA 43.3.a.iii
[payment for public holiday] + [payment for time worked] [Ordinary time for all ordinary hours] + [Ordinary time for all time worked] [$19.10 x 8 = $152.80] + [$19.10 x 4 = $76.40] = $229.20

Permanent
Usually works that day and does not work the PH
VMRSRA 43.3.a.iii
[payment for public holiday taken] [Ordinary time for all ordinary hours] [$19.10 x 8 = $152.80] = $152.80

Permanent
Does not usually work that day and does work PH
VMRSRA 43.4.a.ii
[payment for public holiday work] [Overtime/outside ordinary hours on a public holiday = double time] [Ordinary time x 2 for all time worked] [($19.10 x 2) x 4 = $152.80] = $152.80

Permanent
Does not usually work that day and does not work the PH
FWA s116
No payment applicable

Casual
Does work PH
VMRSRA 36.3
[payment for public holiday work] [casual public holiday rate proscribed in clause 36.3] [$32.56] [$32.56 x 4 = $130.24] = $130.24

Casual
Does not work the PH
No payment applicable

*Rates correct as at 1/1/2016

Managing Public Holidays Onsite

When managing any aspect of employment onsite it is important to plan ahead. With public holidays this is especial. With enough notice items like shut down, planned leave, switching days and staff availability can all be assessed and implemented where required.

It is also helpful to consider equality over the holiday periods, if there are a large number of staff that are casuals consider asking them if they are interested in working the public holiday several rosters in advance. If the response rate is high, look at scheduling shorter shifts, so that everyone has a go.

ACAPMA Here to Help

For more information on the operation of public holidays see: https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/minimum-workplace-entitlements/public-holidays

ACAPMA is a registered industry association, able to provide information, support, advice, assistance and representation to members on employment matters. ACAPMA members are reminded that the ACAPMA Employment Department has a series of resources from Quick Reference Guides to template letters and investigation and reporting checklists that can assist with ensuring compliant and consistent responses in this area, and can access the advice and support of the ACAPMA Employment Professionals by emailing employment@acapma.com.au.

HR Highlights are things to consider, implement and watch out for in your business. They are provided as general advice and you should seek further advice on your situation by emailing employment@acapma.com.au it’s free for members.

ACAPMA Membership is affordable at only $770 per year for a single site and valuable with sites gaining HR advice support and representation as well as a raft of other benefits and discounts. Email assist@acapma.com.au to learn more about ACAPMA Membership.