Generally, all employees have a right to be absent from work on a public holiday. However, as an employer in Australia, you may ask an employee to work on a public holiday if the request is reasonable. If your employees work on a day or part-day that is a public holiday, you must pay them at least their base rate of pay for all hours worked. However, depending on the relevant modern award or enterprise agreement that applies to your employees, they may also be entitled to additional entitlements. Accordingly, as an employer, it is vital to note what entitlements your employees will receive when they work on a public holiday. This article explains your employer obligations.
What Are the Annual Public Holidays for Each State?
You may think that planning for and recognising Australia's annual public holidays is a straightforward process. However, some public holidays are celebrated nationwide whilst others apply on different dates depending on the state. Finally, some states may celebrate a particular event whilst others do not.
For a complete list of Australian public holidays and when they fall depending on which state you are in, visit the Fairwork Ombudsman website.
Employees (Full-Time or Part-Time)
A full-time employee works on average 38 hours per week and has entitlements and rights included in their employment relationship. A part-time employee is someone who works for you on a regular basis whose hours are, on average, less than 38 hours per week. They have the same rights and entitlements as full-time employees. This includes the right to refuse to work on a public holiday if they have reasonable grounds for the refusal.
For some industries such as hospitality and retail, having employees work on a public holiday is common. However, as an employer, you should be aware of your employees' rights concerning public holidays, including the right of refusal.
You might make a reasonable request for an employee to work on a public holiday. In that case, you must pay that employee penalty rates for the hours which they work. The rate you pay your employees will depend on any applicable modern award or enterprise agreement that may apply.
Right to Refuse to Work on Public Holidays
An employee may refuse to work on a public holiday if it is unreasonable to expect them to do so. Factors that are taken into account when determining whether a request is reasonable may include:
- the employee's personal circumstances;
- the operational needs of the workplace;
- whether the employee will be entitled to additional pay, like penalty rates;
- whether the employee's salary otherwise compensates them for work on a public holiday;
- the amount of notice an employer gives to their employee about the requirement to work; and
- the amount of notice given by the employee when refusing to work.
Casual workers do not have regular or guaranteed work hours each week and work on an "as-needed' basis. They do not have the same entitlements and rights as permanent employees. Still, they receive a casual loading to compensate them for not receiving permanent entitlements, including:
- paid leave;
- a notice of termination; and
- redundancy pay.
Casual workers do not have to work on public holidays. Though, if they do, they may also be entitled to be paid penalty rates depending on whether a modern award or enterprise agreement applies to their employment.
Public Holiday Penalty Rates According to Industry
The public holiday penalty rates vary depending on which industry your workers are in. For example, the General Retail Industry Award 2020 provides for the following penalty rates for ordinary hours performed on a public holiday:
- employees (full time or part-time): 225% of the minimum hourly rate; and
- casual workers: 250% of the minimum hourly rate.
By contrast, all employees (whether permanent full-time, part-time or casual) covered by the Health Professionals and Support Services Award 2020 are entitled to be paid 250% of the minimum hourly rate for ordinary hours worked on a public holiday.
Other Factors Affecting the Payment of Penalties
If your employees do not fall under a modern award or enterprise agreement, you do not need to pay them penalty rates for work performed on a public holiday. However, some businesses will choose to pay their workers additional pay as an incentive to work on these days. Employers should always check their employee's employment contracts for other contractual terms affecting their employees.
If you are an employer, it is essential that you know the rules surrounding public holidays and your payment obligation in respect of these. The rate you pay your staff will depend on what type of worker they are and if any modern awards or enterprise agreements apply. Importantly, your employees may refuse to work on a public holiday based on any personal circumstances or if the notice to work was unreasonable.