|Employees’ entitlements to a public holiday that has been proclaimed or gazetted by the relevant state or territory government as a holiday for a specified local government area or region can cause issues for employers.
The observance of local or regional public holidays is subject to the provisions of the Fair Work Act 2009, which is also subject to the relevant state or territory public holiday law, and which must then be read in conjunction with the employee’s industrial instrument (where applicable), or the employee’s individual contract of employment.
Fair Work Act
The minimum entitlement to a paid public holiday is provided under ss114–116, inclusive, of the Fair Work Act. With the exception of employees employed by unincorporated employers in Western Australia, these minimum provisions apply to all private sector employees, including award/agreement-free employees when a holiday falls on a normal work day.
Section 115 of the Fair Work Act defines the meaning of a ‘public holiday’ and provides a list of specified public holidays, however, the provision also includes ‘any other day, or part-day, declared or prescribed by or under a law of a State or a Territory to be observed generally within the State or Territory, or a region of a State or Territory, as a public holiday …’.
Consequently, any day proclaimed by a state or territory government for a particular region, local government area, or any other specified area within a state or a territory, is a public holiday for the purposes of the Fair Work Act.
Because the public holiday provisions in the Fair Work Act are part of the National Employment Standards (NES), the observance of a public holiday and payment for absence on a holiday will override any relevant provision in an existing industrial agreement. It should be noted the Fair Work Act does not provide penalty rates for work performed on a specified public holiday.
The Fair Work Act refers to any day or half-day declared or prescribed by or under a law of a state or a territory. Each state and territory has legislation providing for public holidays. The relevant statute in each jurisdiction is:
New South Wales: Banks and Bank Holidays Act 1912
Victoria: Public Holidays Act 1993
Queensland: Holidays Act 1983
South Australia: Holidays Act 1910
Western Australia: Public and Bank Holidays Act 1972
Tasmania: Statutory Holidays Act 2000
Northern Territory: Public Holidays Act
Australian Capital Territory: Holidays Act 1958
With the exception of South Australia and the Australian Capital Territory, each statute contains listed public holidays that could be described as a regional public holiday and, therefore, falling within the meaning of a ‘public holiday’ for the purposes of the Fair Work Act.
Regional/local holidays March and April 2010 — proclaimed or gazetted by a law
The following days (in date order) have been proclaimed or gazetted as a public holiday or part-day holiday, for a specified region or area of a state, for March or April, by the relevant state government:
Newcastle Show Day (NSW) — Friday, 26 March — Lake Macquarie City Council and Newcastle City Council areas
Albury Gold Cup (NSW) — afternoon of Friday, 26 March — Albury City Council area
Orange Colour Cup (NSW) — afternoon of Friday, 9 April — Orange City Council area
Warwick Annual Show (Qld) — Friday, 9 April — South Downs region
Toowoomba Royal Show (Qld) — Thursday, 15 April — Toowoomba region — for the whole of the former Toowoomba City, Camboya, Clifton, Jondaryan & Pittsworth Shires
Toowoomba Annual Show (Qld) — Friday, 16 April — Western Downs region – area formerly known as Shire of Tara
Kempsey Show (NSW) — afternoon of Wednesday, 21 April — Kempsey Shire Council area
Dalby & District Annual Show (Qld) — Friday, 23 April — Toowoomba region — Dalby & Shire of Wambo
Monto Annual Show (Qld) — Friday, 23 April — North Burnett region — Monto
Wondoan District Annual Show (Qld) — Friday, 23 April — the area formerly known as Shire of Taroom
Yeoval Annual Show (NSW) — afternoon of Tuesday, 27 April — Yeovil township within the Carbonne Council area
Maclean Show Day (NSW) — afternoon of Wednesday, 28 April — Police Patrol districts of Maclean, Yamba and Iluka within the Clarence valley Council area.
Because the number of regional holidays proclaimed or gazetted by the various state and territory governments are too numerous to list individually, there are state websites that contain a list of the regional (and state/territory-wide) public holidays for the relevant state or territory.
Payment for holiday not worked
Under s116 of the Fair Work Act, an employee who is absent on a day or part-day that is a designated public holiday under the Act is entitled to be paid at the employee’s base rate of pay for the ordinary hours on that day or part-day.
‘Base rate of pay’ is the employee’s ordinary pay excluding incentive-based payments and bonuses, loadings, overtime or penalty rate, monetary allowances, and any other separately identifiable amounts.
If the employee does not have ordinary hours on the public holiday, the employee is not entitled to payment for the day. For example, the employee is not entitled to payment if the employee is a casual employee who is not rostered on for the public holiday, or is a part-time employee whose part-time hours do not include the day on which the public holiday occurs.
The applicable industrial instrument will prevail over the Fair Work Act if it provides an employee with a more beneficial entitlement to ordinary pay than the ‘base rate of pay’ for the purposes of payment for a public holiday not worked.
Payment for holiday worked
As mentioned previously, the Fair Work Act does not prescribe a penalty rate for work performed on a specified public holiday. Where an employee works on a public holiday, including a regional or local holiday, the penalty rate is determined by the applicable industrial instrument.
The penalty rate prescribed by a modern award for work performed on a public holiday is subject to its transitional provisions, which commence from the first pay period on or after 1 July 2010. Prior to this date, the appropriate public holiday penalty rate is that prescribed by the applicable award-based transitional instrument (pre-reform federal award or NAPSA).
The public holiday penalty rate for an employee employed under an existing agreement is the rate prescribed by the agreement. Agreements that may provide penalty rates include an enterprise agreement, a workplace agreement, an Australian Workplace Agreement (AWA), a preserved collective or individual state agreement, or a pre-reform certified agreement.
Employee refusal to work a holiday
As with any other public holiday, an employee is entitled to be absent on the day a public holiday falls; however, an employer may request an employee to work on a holiday provided the request is reasonable.
Source: Paul Munro, IR Consultant: Workplaceinfo.
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