As ANZAC Day approaches it is time once again for employers to review the requriements around public holidays.  The concept of the public holidays in the employment system is to provide employees with the time away from work to celebrate special days, like Labour Day or Melbourne Cup Day or Easter or AFL Grand Final or Christmas, with friends and family.  If staff are working on these special days they receive a penalty or higher rate of pay.

Public Holiday Basics: The Principle

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

This entitlement is available to permanent employees and is outlined in s115 of the Fair Work Act (FWA), which names some public holidays, and any other day or part day proscribed by a State or Territory law to be observed generally as a public holiday.

In addition to those provided for in the Act the Awards also stipulate the operation of public holidays;

Public Holiday Basics:  A request to work, not a direction…at least not at first

A decision in a case before the full Federal Court earlier this year has clarified what a business needs to do in order to make a compliant ‘request to work a public holiday’ from their employees – and it is significantly more than putting forward a roster and assuming that staff will work the public holiday.

“The case in question hinged around two elements; was a request to work the public holiday compliantly made, and was any refusal to work the public holiday made by the employee reasonable.  The outcome of the case has had little impact on the second element, that is what we operationally know of employees refusing to work a public holiday and when the business can insist has not changed.  What has been clarified is what exactly it takes for the business to make the ‘request’ for the employee to work the public holiday in the first place, and in this there are some significant learnings for businesses” explains ACAPMAs Elisha Radwanowski.

At issue was if the request to work the public holiday is posed in such a way that is an assumption.  In handing down the decision the Full Court noted that the business “never made a request of its employees asking them whether they would be willing to work on Christmas or Boxing Day 2019.  Rather, there was an assumption that those employees rostered to work on those days would work on those days, unless they applied for leave and it was granted”.

The Justices went further noting that “required is that an employer ensures that employees understand either that the roster is in draft requesting those employees who have been allocated to the holiday work that they indicate whether they accept or refuse that allocation, or where a request is made before the roster is finalised”.

The Full Court acknowledged that there may be an administrative burden for businesses in making the request specifically, especially in cases where it is more than likely reasonable to require the employee to work in the event that they refuse, however it is a separate and distinct requirement that they employees are requested to work first, so the outcome of any potential refusal and requirement thereafter does not remove the need for the business to make the request properly and compliantly.

The outcome of this case is an opportunity for all businesses to review their roster communication and amendment processes, and also potentially their contracts to clarify when requests are being made and the processes internally for refusing requests and any assessment or requirement to work that would flow from any refusal.

“Members have been calling through over the last few days keen to ensure that their processes are fully capturing the clarifications outline in the case”, explained ACAPMAs Elisha Radwanowski.

“For most members, if there is a process of providing the roster in DRAFT format, followed by a period where the employees can comment on and request amendments to the roster before a FINAL roster is provided, then there will be no need for tweaking of operations”.

“Members could consider the addition or rewording of public holiday clauses in contracts and letters of offer, to reflect the trading nature of the business over public holiday periods, but if there is a Draft-Then-Final process for the rosters in place now then there is no need for change”, continued Elisha.

“If the business does not have a Draft-Then-Final process, it is important that, in general all staff know that they have the capacity to request changes to the rosters, apply for paid and unpaid leave and generally consult with the business on their hours of work, but more specifically, it is important that for those rosters that include a public holiday that it is identified that this is a request for the employees to work on that day, which is a public holiday”.

“Members could consider the addition of an identifier for public holidays, combined with a notation on the request process”, added Elisha.

Something like;

“For those members who are seeking to clarify the upcoming Easter Public Holidays, particularly those who have very stable rosters, but who do not actively accept rosters as part of a roster sign off process, it maybe advisable to put the clarification into a memo to staff”, explained Elisha.

Something like;

MEMO:  Public Holiday Requests to Work

This note is to clarify that where an employee appears on a roster as working on a Public Holiday this is a request for the employee to work. To accept the request listed employees can either take no action (other than present for work) or can actively accept the roster. To refuse the request listed employees should reach out to the Site Manager in writing. Any refusals will be honoured wherever practicable, however, as outlined on commencement the business trades through all public holidays and it is the business expectation that employees will work some public holidays so the business may, if required, direct an employee to work a public holiday. All work on a public holiday will be as per the public holiday rates/penalties outlined on commencement. 

“Employees have a right to take the time at home, away from work, during a public holiday.  That is the default position, that an employee will not work on a public holiday.  Where a business is trading during a public holiday it is important that the business make the effort to make a proper ‘request’ to the employee to work on the public holiday.  This allows the employee to internalise that it is a ‘request’ and that they have an avenue to say ‘no thanks I’d rather stay home’.  This case has highlighted that even in instances where the business is confident that any requiring of the employee to work would be ‘reasonable’ it can not simply skip the ‘request’ step.  When it comes to public holidays it is; Request, Refuse, Reasonably Direct – and each step is important and must be fully demonstrated” concluded Elisha.

Public Holiday Basics:  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 Awards these rates change depending on the nature of the employment.

Public Holiday Basics:  “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. For permanent staff, 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 a permanent employee choses to take the public holiday (which means that they are not working) then most Awards provide for base ordinary hours for that day to be paid at the base rate.

Under the FWA, a permanent 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” for that day.

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.

Example:

If a permanent employee usually does not work Saturdays, then the employees ordinary hours on a Saturday are zero, so if Saturday is a Public Holiday the employee can take the celebration of the Public Holiday without any change to their base pay.

If on the other hand the permanent employee usually works 5 hours on a Saturday, then their ordinary hours on a Saturday are said to be 5 hours, so if Saturday is a Public Holiday then the employee can choose to take the celebration of the Public Holiday and not come into work and they will still receive payment in the amount of base rate for 5 hours.

Public Holiday Basics:  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.

Public Holiday Rates – Time worked PLUS

When a permanent employee works a public holiday they have to be paid for the public holiday PLUS paid a premium or penalty for working on what should have been a day off for them (or time in lieu where agreed).

When calculating and communicating pay rates to staff there can be some confusion.

It is important to review the Award, or employment instrument that the employee is engaged under to determine the rates and minimum hours to be offered.

ACAPMA members are reminded that ACAPMA can provide advice and support on the operation of public holidays in the industry, as well as resources on the calculation and application of public holiday rates.

What about Overtime?

Overtime, and overtime on a public holiday, are provided for in the Awards.

In one example – as per the VRSRA 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 VRSRA 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 the pay tables.

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 or Easter period.

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.

Can I pay more than the minimum on a Public Holiday?

Yes, but you should let the staff know that you are going above the minimum in this particular instance and that it is not a promise to do so for every public holiday.

“With the current staff shortages comes an increased pressure over Christmas.  In fuel retail this is compounded by a quirk in the Award.  Casual Fuel Retail Staff are paid the same on a public holiday as they are on a Weekend.  This can lead to an increased number of questions from staff, and operators about the options of incentivising Christmas Day work with an above Award bonus” explains ACAPMAs Elisha Radwanowski.

“This is perfectly acceptable, but it is important that the lines of communication are clear, that if the business does offer this bonus that it is well understood that this is a one off and may not necessarily apply to all future public holidays” concludes Elisha.

Holiday Swapping

For some Australians some public holidays do not hold the same family and cultural significance, while at the same time there are special cultural religious and community days that are not recognised as public holidays such as; Ramadan Start (9/3/2024), Eid al-Fitr (9/4/2024) and Eid al-Adha (17/6/2024) or Diwali (1/11/2024).

So can public holidays be “swapped”

“Yes it is possible to swap public holidays, but there are some things that need to be well understood and there are formal communications that will need to be undertaken to ensure that compliance is still met” explains ACAPMAs Elisha Radwanowski.

A public holiday may be swapped or substituted if the employment instrument provides for it.

In the fuel industry;

“For fuel industry workers it is permitted to swap public holidays.  Any such swap should be documented in full and should address the rates that will apply on each of the day, both the original public holiday and the swapped public holiday” adds Elisha.

For example, for a permanent staff member a letter could look like this;

Dear Mo,

Further to our recent conversation this letter is to confirm the business has accepted your request to swap some public holidays.  Please see below for how this swap will impact your work and payment on those days as agreed.

Public Holiday Good Friday 29/3/2024 to be  swapped with Edi al-Fitr 9/4/2024.

-Any work on 29/3/2024 will be as a normal day as will be pay (usual Friday rates apply not public holiday rates).

-As a permanent employee usually scheduled to work on a Tuesday if you choose to take the day off on 9/4/2024 you will receive payment as if you had been at work and the day will be recorded as a public holiday not as any kind of leave

-Any work on 9/4/2024 will be paid as a public holiday at public holiday rates.

In the event of your employment ending for any reason before 9/4/2024 this agreement will default back to standard operation so  any work undertaken on 29/3/2023 will be subject to penalty rates and an adjustment to pay will be made.

If you have any questions please do not hesitate to contact me.

 

“It is important to note that the agreement needs to be comprehensive and written and address all of the circumstances, including what would happen if the employees employment ended, by termination or resignation etc, prior to the swapped day occurring” continues Elisha.

“This gets more complicated with casual staff but is possible” adds Elisha.

For example, for a casual staff member a letter can look like this;

Dear Mo,

Further to our recent conversation this letter is to confirm the business has accepted your request to swap some public holidays.  Please see below for how this swap will impact your work and payment on those days as agreed.

Public Holiday Good Friday 29/3/2024 to be  swapped with Edi al-Fitr 9/4/2024.

-Any work on 29/3/2024 will be as a normal day as will be pay (usual Friday rates apply not public holiday rates).

-Any work on 9/4/2024 will be paid as a public holiday at public holiday rates.

In the event of your employment ending for any reason before 9/4/2024 this agreement will default back to standard operation so  any work undertaken on 29/3/2024 will be subject to penalty rates and an adjustment to pay will be made.

If you have any questions please do not hesitate to contact me.

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.

State Public Holidays

States also have a list of public holidays that may differ.  Most employment instruments and Awards provide for employees to have all gazetted State public holidays in addition to those outlined in the Fair Work Act.  For a list of 2024 State Holidays please visit:   https://www.australia.gov.au/about-australia/special-dates-and-events/public-holidays.

Regional Holidays

It is also important to note that Regional Public Holidays may apply in a businesses area of operations and will be treated as public holidays if applicable. For a list of 2024 Regional Holidays please visit:   https://www.australia.gov.au/about-australia/special-dates-and-events/public-holidays.

Here to Help

Through the year ACAPMA Employment Professionals are available to assist members via employment@acapma.com.au.

This article is general in nature and covers 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 calling 1300 160 270 and speaking to one of ACAPMA Employment Professionals its free for members. ACAPMA membership is affordable at only $860 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.

Visit: https://acapma.com.au/membership/   to apply for ACAPMA membership.

Elisha Radwanowski BCom(HRM&IR)
ACAPMA

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