This is a common question for businesses with employees that move between states and territories for their work.

For example, imagine a company, based in the ACT, that sends an employee to Western Australia for a short work trip. During the time the employee is away, there is the Labour Day public holiday in ACT, but it is not a public holiday in Western Australia. Does that mean the employee is not entitled to the holiday?

Public holidays and employees interstate

This can be a particularly common problem for those companies that operate in cities or towns situated on state or territory borders. Generally, the appropriate jurisdiction is the one where the work (or majority of the work) is carried out under the contract of employment.

In the above scenario, the employee resides in the Australian Capital Territory but performed work in Western Australia (where it was not a public holiday): because his work under his contract of employment is to be performed primarily in the Australian Capital Territory, then the public holidays prescribed under ACT public holiday legislation will apply. 

Therefore, the employee performed work on a public holiday, with the appropriate public holiday conditions in his award or employment contract being applicable.

Tip: Where work involves interstate travel, it may be prudent for an employer to put a reference to the relevant state or territory public holiday legislation in the employee’s contract of employment, to avoid any uncertainty on this point. 

The relevant modern award or enterprise agreement may also allow the employer and an individual employee (or majority of employees in the establishment) to agree on the substitution of a day or part-day that would otherwise be a public holiday. 

Award/agreement-free employees

In the case of an award/agreement-free employee, the Fair Work Act 2009 (s115(4)) provides that the employer and the employee may agree to substitute a public holiday for another day.