Public Holidays – What do employers need to know?

Madeleine Pittorino
Employee Relations Officer

Upcoming Public Holidays 2021-2022

With many public holidays coming up, employers need to familiarise themselves with the rules regarding public holidays as per the relevant industrial instruments. For National Systems Employers, the Fair Work Act 2009 (Cth) (the FW Act) prescribe entitlements with relation to public holidays. In addition, the Public and Bank Holidays Act 1972 (WA) (the PBH Act) prescribes state-specific public holidays and substituted days that apply for employees in Western Australia.

For the Christmas-New Year period this year, the PBH Act considers the following days as public holidays in Western Australia:

• Christmas Day – Saturday, 25 December 2021;
• Boxing Day – Sunday, 26 December 2021; and
• New Year’s Day – Saturday, 1 January 2022.

Additionally, the PBH Act prescribes that, where New Year’s Day or Christmas Day fall on a Saturday, the following Monday shall also be a public holiday, and where Boxing Day falls on a Sunday, the following Tuesday shall also be a public holiday. Consequently, the below dates are also deemed to be public holidays in Western Australia:

• Additional public holiday for Christmas Day – Monday, 27 December 2021;
• Additional public holiday for Boxing Day – Tuesday, 28 December 2021; and
• Additional public holiday for New Year’s Day – Monday, 3 January 2022.

Public Holidays and Substitution days

Awards and Enterprise Agreements may include terms that allow an employer and employee to agree on a substitution for a public holiday. These arrangements allow public holidays to be observed on a mutually agreed day and public holiday rates are only payable on that day. Additionally, some awards and enterprise agreements stipulate which days are to be observed as the public holiday and/or substituted day, and what penalty rate applies for work performed on those specified days.

It is important for employers to check the relevant industrial instruments that apply to their business and ensure that they are observing the correct days as public holidays and/or substituted days, and that they are giving employees the applicable entitlement for those days.

Entitlement for Public Holidays

If an employee is absent from their employment on a day or part-day that is a public holiday, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work on the day or part-day. Awards and Agreements may specify additional entitlements – such as payment where a Rostered Day off falls on a Public Holiday.

A National System Employer may require an employee to work a public holiday. However, the employee may refuse the request on reasonable grounds. When determining if an employee’s refusal is reasonable, the following needs to be considered:

• the nature of the employer’s workplace and the nature of the work performed by the employee;
• the employee’s personal circumstances (e.g. family responsibilities);
• whether the employee could reasonably expect that they may be required to work on the public holidays;
• whether the employee is entitled to additional remuneration or benefit for working on the public holiday;
• the type of employment;
• the amount of notice given by the employer when making the request;
• the amount of notice given by the employee in refusing the request; and
• any other relevant factors.

Businesses planning to be open on a public holiday should provide employees with as much notice as possible if they will be required to work and ensure they allow scope for employees to refuse where the refusal is reasonable.

If an employee is reasonably required to work a public holiday and/or substituted day, the relevant award or enterprise agreement specifies the entitlement payable to the employee for working that day (e.g. penalty rate, extra day off etc.). Note that award free employees are not entitled to additional entitlements for working a public holiday unless their contract of employment specifies otherwise.

Leave and Public Holidays

In the lead up to public holidays, businesses should consider communicating to staff clear parameters surrounding the use of leave over this period, such as notice requirements when requesting annual leave. Employers should have appropriate leave policies in place to ensure employees are aware of the procedures for requesting leave. Employers can refuse annual leave requests on reasonable business grounds.

It is important to note that an employee on a period of paid leave, such as annual leave, personal/carer’s leave or long service leave, is deemed to not be on leave that day and is entitled to payment for the public holiday. However, an employee is not entitled to payment for a public holiday if they are on a period of unpaid leave and the public holiday falls within that period of leave.

A calendar of the 2022 public holidays in Western Australia can be found here: https://www.commerce.wa.gov.au/labour-relations/public-holidays-western-australia

If you would like additional information about Public Holidays, contact CCIWA’s Employee Relations Advice Centre team on 9365 7660 or email advice@cciwa.com.

Leave a Reply

Please Note! - The Membership fees will pro-rata depending on the day you join, to get today's rate please contact us on 9365 7510.