Festive season public holidays 2021- what do employers need to know?

As Christmas Day, Boxing Day and New Year’s Day fall on weekends for the 2021/2022 end of year festive season, in some states and territories there will be substitute public holidays, and in others there will be additional public holiday days as each state and territory government is responsible for declaring gazetted public holidays.

This will impact employers when determining rosters and pay over this period.

Additional public holidays: Where an additional public holiday is declared, the actual public holiday and the additional day are both treated as public holidays.

Substituted public holidays: Where a substitute public holiday is declared, only the substitute day is generally regarded as the public holiday.

For more information about whether your state or territory has ‘additional’ or ‘substituted’ public holidays, please see the table below.

Please also note that Wednesday 26 January 2022 is a public holiday in all states and territories for Australia Day.

Can I require my employees work on a public holiday?

Under the National Employment Standards (NES) both additional and substituted public holidays are considered public holidays for the purposes of the NES.

The NES confirms that:

• an employee is entitled to be absent from work on a public holiday, unless their employer has made a reasonable request for the employee to work on the public holiday; and
• an employee is entitled to be paid their base rate of pay if they are absent from ordinary hours of work on a public holiday (see more detail below).

Employers are entitled to reasonably request employees to work on a public holiday. Employees, however, can refuse to work on a public holiday if the refusal is reasonable.

To help decide if a request to work on a public holiday is reasonable, there are a number of factors to consider, including, but not limited to:

• the nature of the workplace and the work completed;
• whether employees will receive additional pay (e.g. penalty rates);
• personal circumstances, such as family/caring responsibilities of the employee; and
• the amount of notice provided by the employer when making the request.

What rate do I pay my employees who work on a public holiday?

Employees who work on a public holiday may be entitled to public holiday penalty rates in accordance with the applicable modern award or Enterprise Agreement. It is important for employers to check the modern award or Enterprise Agreement carefully as they may also contain additional benefits for employees (e.g. that employees must be provided with an alternative day off when they work on the public holiday or additional payments).

What do I need to pay my employees if the business closes for the public holiday?

If a business does not trade on the day on which the public holiday is observed, no further payment is required to be made to employees.

However, if a business trades on the public holiday and the business is closed for all or part of the day due to the public holiday, then full-time and part-time employees are entitled to be paid their base rate of pay for the ordinary hours they would have worked, had it not been for the public holiday.

The base rate of pay does not include incentive-based payments and bonuses, loadings, allowances, overtime or penalty rates.

Part-time employees whose regular hours do not include the day of the week on which the public holiday falls are not entitled to payment. Similarly, casual employees are not entitled to be paid when they are not rostered on a public holiday.

How do public holidays affect personal leave and annual leave?

An employee’s entitlement to public holidays is separate from their entitlement to personal leave and annual leave. Where a public holiday falls on a day during an employee’s period of annual leave or paid personal leave (and the employee would have ordinarily worked on that day), they still must be paid for the public holiday and it does not reduce their annual leave or personal leave balance.

If you require assistance with your obligations regarding public holiday penalty rates, contact HR Legal.