Your public holiday questions answered

What do I need to pay my employees on a public holiday?

An employee is entitled to be absent from work on a public holiday and to be paid at their base rate of pay for their ordinary hours during this period. This usually means that the employee would not be entitled to any shift loadings or other allowances.

If an employee works on a public holiday, there will usually be a penalty rate in their relevant modern award or enterprise agreement and often the penalty rate is double time and a half.

Do I have to pay an employee for a public holiday if they are on a period of unpaid leave?

If an employee is on unpaid leave on both sides of a public holiday, they will not be entitled to payment for the public holiday.

For example, if an employee is on a period of unpaid sick leave or unpaid parental leave, they will not be entitled to payment for a public holiday which falls during this time.

However, if the employee takes unpaid leave on only one side of the public holiday, they will be entitled to be paid for their ordinary hours which occur during that public holiday.

What if an employee takes the day off on the day before or after the public holiday?

Employers may have employees who apply for annual leave before or after the public holiday. If this leave is approved then the employee will also be entitled to payment for the public holiday.

However, there are times when an employee will be absent from work due to illness the day before or the day after the public holiday and this could raise some questions for the employer as to whether the illness is genuine.

Section 107 of the Fair Work Act 2009 (Cth) (the Act) requires an employee to provide notice and evidence to their employer that they were unfit for work for that period. If an employee fails to comply with this requirement the day before or after the public holiday, then the employee may not be entitled to paid personal/carer’s leave for the absence on that day and could face disciplinary action.

Under the Act, the employee will still be entitled to be paid for the public holiday, except where the employee is on unpaid leave on both sides of the public holiday.

What if an employee is rostered to work on a public holiday but calls in sick?

As discussed above, if an employee is unwell on a day that they are rostered to work they are required under the Act to provide notice and evidence to their employer in line with any relevant company policy or procedure.

If an employee becomes ill on a day that is a public holiday which they were rostered to work, they will be paid for the public holiday and the period will not be treated as personal leave.

Section 98 of the Act provides that if the period during which an employee takes paid personal/carer’s leave includes a day or part day that is a public holiday, they will not be on personal leave on that public holiday.

Another situation which could arise is one where the employee is rostered to work on a public holiday but does not show up because they decide they want to have a long weekend. If this occurs, the business should ask the employee why they did not report for work on that day and ask the employee to provide a valid explanation for their absence. The employee will be entitled to payment for that public holiday at their ordinary time rate of pay, but they may be subject to disciplinary action.

If this pattern of behaviour continues, the employee could face further disciplinary action which may include termination of employment.

What if I request an employee to work on a public holiday and they refuse?

An employer has a right to request that an employee works on a public holiday, however, an employee does have a right to refuse this request if the refusal is reasonable in the circumstances.

The National Employment Standards set out several 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.