Are you prepared for the Easter Public Holidays?
With the Easter holidays quickly approaching employees will hopefully receive a well earned break. However employer’s may face a challenging month of managing their worker’s entitlements.
¹On 1 December 2016, an amendment to the Holidays Act 1983 was passed prescribing that from 2017, Easter Sunday is to be observed as a public holiday.
²This public holiday has limited application to particular employees or specific geographic location.
For a complete list of public holidays see our Public Holiday Planner 2019.
An employee that has ordinary hours that fall on a public holiday is entitled to be paid for these hours with payment made at the employee’s base rate of pay.
The “base rate of pay” of an employee is the rate of pay payable to the employee for his or her ordinary hours of work, but not including any of the following:
If an employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under the NES.For example, an employee would not be entitled to payment if they are:
Most modern awards contain penalty rates for employees that work on a public holiday with some different rates for work performed on a Good Friday. Two examples are the Road Transport and Distribution Award 2010 and the Airline Operations—Ground Staff Award 2010.
Under the Road Transport and Distribution Award 2010 all time worked by employees on Good Friday is paid at treble time. And, under the Airline Operations—Ground Staff Award 2010 day workers who work on Good Friday are to be paid at double time and a half for all time worked rather than the usual public holiday penalty rate of double time (except for Christmas Day).
Employers should make sure they check the modern award/enterprise agreement provisions that may apply to their employees.
The public holiday entitlement is subject to an employer’s right to request that an employee work on a public holiday if the request is reasonable.An employee, however, does retain the right to refuse such a request if the refusal is reasonable in the circumstances.
The NES sets out a number of considerations to determine whether a request to work or a refusal to work is reasonable.These include matters such as:
Where an employee is award/agreement-free, the employee and employer may agree to substitute a public holiday for a different day. Where an award or agreement applies to the employee, the employer will need to consult the relevant instrument. Many modern awards allow for substituting by agreement between the employer and employee.
The Fair Work Act (the FW Act) and the NES make it clear that employers can require notification from employees of any absence and evidence to support any personal leave they take.
However, there is no provision within the FW Act for employers to deduct payment for a public holiday in order to deter employees from being absent on the day or days adjacent to a public holiday.
Despite this there are a number of options available that may help reduce or control the issue.
Under the FW Act an employee is not entitled to personal leave unless they:
Except where it is impractical to do so, employees should be required to contact their manager or designated person if they are unable to come to work for any reason. Notification should occur prior to the employee’s normal start time, or as early as possible.
Managers should ensure they follow up on any absence and, where necessary, seek the relevant evidence required. Most commonly this would be a medical certificate or statutory declaration. It is important that the organisation sets out in a policy and/or contract of employment what documentation is expected. This information may also be contained within an enterprise agreement.
Employers are often unsure of how public holidays interact with personal/carer’s leave and annual leave.
Basically, the NES provide that an employee is considered not to be on annual leave or personal/carer’s leave if it includes a day or part-day that is a public holiday.
Thus, if a public holiday falls during a period of annual leave, it is not to be treated as annual leave. The same follows for when an employee takes personal/carer’s leave.
Clinton is the Publications Manager at Ai Group. He is responsible for a number of key services including Annotated Modern Awards, Workplace Relations Handbooks and the management of Ai Group’s HR and Health & Safety Resource Centres. Clinton has a Masters in Employment Relations and previously held advisory roles with the Workplace Authority and Fair Work Ombudsman.
