Is your business prepared for the Easter public holidays?

The Easter holiday period is always a popular period for leave requests, with many employees seeking to take advantage of the number of public holidays. With COVID-19 restrictions easing across the country, employees may take this opportunity to have a well-earned break. This leaves employers with the challenge of balancing their employees’ leave requests as well as ensuring there is enough coverage during operating hours.

Easter holidays for all states and territories

In addition to the Easter holidays, this year the ANZAC Day public holiday occurs soon after. This may mean that employees will want to take the opportunity to take annual leave during this period to take advantage of the high number of public holidays.

Note: The Public and Bank Holidays Act 1972 was recently amended to make Easter Sunday a public holiday in Western Australia.

Payment for public holidays

An employee who has ordinary hours that fall on a public holiday is entitled to the day off paid 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:

• incentive based payments and bonuses

• loadings

• monetary allowances

• overtime or penalty rates

• any other separately identifiable amounts

If an employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under the National Employment Standards (NES). For example, an employee would not be entitled to payment if they are:

• a casual who is not rostered to work on the public holiday; or

• a part-time employee whose hours of work do not include the day of the week on which the public holiday occurs.

Most modern awards provide a penalty rate of double time and a half for work performed on a public holiday.

Reasonable requests/refusals to work on a public holiday

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, has 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:

• the nature of the work performed;

• the employee’s personal circumstances, including family responsibilities;

• whether or not there is a reasonable expectation that the employer may request the employee to work on a public holiday;

• whether or not the employee is entitled to receive penalties for working on a public holiday;

• the type of employment, for example, part-time or full-time;

• the amount of notice given by the employer requesting the employee work on a public holiday;

• the amount of notice given by the employee in refusing such a request; and

• any other relevant factors.

Unscheduled absence on the day before or after a public holiday

The Fair Work Act 2009 (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 to deter employees from being absent on the day or days adjacent to a public holiday.
Despite this, there are several options available that may help reduce or control the issue.

Notification and evidence requirements

Under the FW Act, an employee is not entitled to personal leave unless they:

• notify their employer as soon as practicable that they will not be at work and the expected period of the absence; and

• if required by the employer, give the employer evidence that would satisfy a reasonable person.

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.

Public holiday falling during annual leave or personal/carer’s leave

Employers are often unsure of how public holidays interact with personal/carer’s leave and annual leave.

Basically, the NES provides 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.

Therefore, if a public holiday falls during a period of annual leave, it is not to be treated as annual leave. If an employee is absent from work on a public holiday due to being unfit for work due to personal illness or injury, the day will be paid as a public holiday, not personal leave. The same will apply if the employee is absent and meets the requirements for carer’s leave.