Employer obligations for Easter public holidays

Your employer obligations for public holidays over Easter

Employer obligations for public holiday pay is determined by the applicable modern award or enterprise agreement and varies based on the award penalty rate and the public holiday. To understand your obligation on public holiday pay, you must review the relevant award or enterprise agreement. If one doesn’t exist, payment is subject to the terms of your employee’s employment contract.

WHAT IS THE LAW FOR EMPLOYEES WORKING ON PUBLIC HOLIDAYS?

According to the Fair Work Ombudsman, when employees work public holidays, they are entitled to at least their base rate of pay. However, many awards or agreements outline additional employee entitlements for working public holidays.

These can include: 

• public holiday penalty rates
• extra day off or extra annual leave
• minimum shift lengths on public holiday
• time in lieu – agreeing to substitute a public holiday for another day.

You should consult the relevant modern award or enterprise agreement to determine employee entitlements for working on a public holiday. If employees are not covered by an award or agreement, they should be paid according to their employment contract. 

Can I make my employees work on Easter public holidays?

According to the Fair Work Act 2009, employers have the right to request employees work on a public holiday if the request is reasonable. Likewise, an employee can refuse the request to work a public holiday if they have reasonable grounds. In the first case, the onus of proof is on the employer, in the latter it is on the employee. 

There is nothing in the Fair Work Act in regards to employees volunteering to work on public holidays. State legislation specifies which businesses can trade on specific public holidays if all employees working have genuinely volunteered to work. Likewise, there is nothing to support that working on public holidays is prohibited.

Determining if an employer’s request is ‘reasonable’

Whether or not an employee has to work over public holidays is determined by the concept of ‘reasonableness’. Some of the factors that go into determining whether a request is reasonable, or whether the refusal is reasonable, include:

• the employee’s personal circumstances, such as their family responsibilities
• whether the employee is entitled to penalty pay or additional compensation that reflects the expectation to work on a public holiday
• whether the employee works in a full-time, part-time, casual or shift work capacity
• the advance notice given by the employer in making the request
• the advance notice given from the employee if they refuse the work
• whether the employee’s existing employment contract and salary includes work on a public holiday
• whether the employee could reasonably expect the employer might request work on the public holiday.

The weight and relevance of each factor depends on the specific circumstances of each request. For example, some workplaces require a certain level of staff on a public holiday, such as a hospital or a police station. In this case, if the employer has advised the employee they may be required to work public holidays, the request could be considered reasonable.

However, in some cases an employee may not be able to work a public holiday because of family commitments or other personal circumstances. If they have notified their employer in advance, a refusal to work on the public holiday may be considered reasonable.

Lastly, if an employee refuses to work on a public holiday, they must explain their reasons for refusing the request. Otherwise, the refusal may not be considered reasonable, even if the employee has good reasons for not wanting to work.

What if a rostered day off (RDO) falls on a public holiday?

Some employees (full-time or part-time) may have an RDO that falls on a public holiday. Check the relevant award or enterprise agreement to see if payment or other arrangements are required.

What if an employee is on annual leave during a public holiday?

In some cases, the Easter public holidays may occur during an employee’s annual leave or personal leave. The Fair Work Act states this should be taken as a public holiday, not as annual, personal or carer’s leave. As such, it shouldn’t be deducted from their leave balance. 

What if an employee has an unexplained absence before or after a public holiday?

Employees may take time off before or after a public holiday. The Fair Work Act (s116) states that if an employee is absent from employment on a day or part-day that is a public holiday, an 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. No modern award contains terms which permit an employer to deduct payment for a public holiday where the employee is absent the day before or after without reasonable excuse.

While an unauthorised absence may be grounds for taking disciplinary action, an employee would still be entitled to payment for a public holiday that falls on a day the employee normally works.

What if an employee is on long service leave during a public holiday?

If you have an employee who is on long service leave, their leave is usually extended for each day they would normally work that falls on a public holiday. For example, if a New South Wales employee normally works on Fridays and Mondays and is on long service leave over Easter, their leave would be extended by two days.

This rule for long service leave applies in most states, except for South Australia and the Northern Territory.

Employer obligations for public holidays can vary depending on the state, award or agreement and the individual circumstances. It’s best to check your award or agreement and consult the Fair Work Ombudsman’s pay calculator to ensure you are paying your employees correctly.

What to do if your workplace has a ‘short day’ Friday

There are some cases where employees work four eight-hour days, with a shorter working day of six hours on Friday. However, employers in this situation are often approached by employees claiming 7.6 hours of pay for the Friday. This is because many employees have a misconception that a public holiday is worth a specific amount of time.

In this case, the ‘short day’ Friday arrangement is non-standard as employees aren’t working 7.6 hours each day. Because of this, if an employee was paid 7.6 hours on Friday, they would incorrectly be paid for 39.6 hours that week, rather than 38.