Public holiday pay for Australia day 2021

With Australia Day approaching, many employers will have questions around public holiday rates and working arrangements. In this article I answer commonly asked questions about public holidays.

​There are National, State, Territory and Regional public holidays. Employers should be aware of all public holidays applicable to their business and employees. Most public holidays are full days but there are also a few part day public holidays in selected States.

Plan ahead

Successful business owners and managers plan ahead and know which public holidays are coming up for the year.

​They plan when their business will or will not trade, their staffing requirements and projected wage costs.

They also know that employees like to take advantage of public holidays by requesting leave to get long weekends or extended holidays, which could have an impact on staffing levels.

Planning ahead also helps in providing sufficient notice to employees if they are required to work on a public holiday.

Know the legislation that applies to your employees

​Specific entitlements and rules that apply to your employees are determined by the National Employment Standards (NES), any applicable award or enterprise agreement. You will need to be across the detail and apply these minimum terms and conditions. 

For assistance in identifying and interpreting the industrial instrument applicable to your employees contact us today for a no-obligation consultation.

Can an employee refuse to work on a public holiday?

Employees don't have to work on a public holiday, but an employer can ask an employee to work on a public holiday if the request is reasonable. 

An employee may refuse a request to work if they have reasonable grounds.

Take the following into account when deciding if a request is reasonable:

• the nature of the employer’s workplace (including its operational requirements) and the nature of the work performed by the employee
• the employee’s personal circumstances, including family responsibilities
• whether the employee could reasonably expect that the employer might request them to work on the public holiday
• whether the employee is entitled to receive overtime payments, penalty rates, additional remuneration or other compensation that reflects an expectation of work on the public holiday
• the type of employment (e.g. full-time, part-time, casual or shiftwork)
• the amount of notice in advance of the public holiday given by the employer when making the request
• the amount of notice in advance of the public holiday given by the employee in refusing the request
• any other relevant matter

The NES protects an employee’s workplace right to reasonably refuse to work on a public holiday, and will guarantee payment where an employee is absent from work because of a public holiday.
Employees are protected from adverse action for having, using, or seeking to use their workplace right to reasonably refuse to work on a public holiday.

Communicate expectations

​If your business regularly trades on public holidays, I would encourage you to have this conversation with employees when you offer them employment so they have an understanding of your expectations up front. Link this to meeting customers needs and the importance to business success so they understand the value of their contribution.

Can a public holiday be substituted for another day?

If, under the law of a State or Territory, a public holiday is substituted for another day, then the substituted day or part-day is the public holiday.

​An award or agreement may include provisions for an employer and an employee to agree to substitute a public holiday for another day or part-day. This also applies to award/agreement-free employees.

Where an agreement is reached, the original public holiday effectively becomes an ordinary working day, and the substituted day becomes a public holiday.

What payment is required if an employee does not work on the public holiday?

If an employee is absent from work on a public holiday, the employer must pay the employee (other than a casual employee) the base rate of pay for the employee’s ordinary hours of work on that day or part-day.

​The base rate of pay to be paid excludes incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates, or any other separately identifiable amounts.

An employee is not entitled to payment if they do not have ordinary hours of work on the public holiday.

An employee's roster can't be changed to deliberately avoid this payment.

​An award, enterprise agreement or other registered agreement can set out other rules and entitlements when not working on a public holiday.

Working outside your State or Region on a public holiday

​An employee is entitled to public holidays depending on where they are based for work not where they are working on the day of the public holiday.

Working on a public holiday

Employees get paid at least their base pay rate for all hours worked on public holidays.
Awards, enterprise agreements and other registered agreements can provide entitlements for working public holidays, including:

• extra pay (eg. public holiday rates)
• an extra day off or extra annual leave
• minimum shift lengths on public holidays
• agreeing to substitute a public holiday for another day

Public holiday during leave

​If a public holiday falls when an employee is on leave, their entitlement to the public holiday depends on whether they are taking paid leave or unpaid leave.

Paid leave and public holiday

​If a public holiday falls during a period of paid leave (eg. annual leave or sick leave), the employee has to be paid for the public holiday and it will not be counted as leave.
If an employee is taking long service leave on a public holiday, whether an employee gets paid for the public holiday is set out in the state or territory long service leave legislation.

Unpaid leave and public holiday

​An employee isn’t required to be paid for any public holiday that falls during a time when the employee is on unpaid leave.

In summary

Plan ahead
Communicate early
Know the legislation that applies to your employees
Happy Australia Day!

About the Author

​​Tracy Ford has over 25 years of experience as an HR Professional working in the Corporate and SME sectors. She specialises in helping Business owners, Leaders and Managers navigate the world of people management and leadership. Often this is “in the moment” when they are dealing with a complex, tricky, or “first time I’ve had to deal with this” issue or situation. Outside of these “in the moment” situations they work together on proactively developing and implementing tools, resources, systems and processes to have at their disposal, so that they can effectively attract, manage, develop and retain great employees.

About Concept HR Services

​Concept HR Services helps businesses like yours set up and maintain effective HR systems and processes to attract, manage, develop and retain productive, high performing employees.

HR solutions that are practical, no-nonsense and cost effective that meet the needs of your business, your organisational culture, your leaders and employees.

You may be a small business owner hiring your first employee, a seasoned CEO in a growing business looking to take a more strategic approach to HR management, or an HR Professional looking for help with an upcoming project.

Contact us for advice on public holidays or any employee entitlements. Arrange a no-obligation call to discuss how we can help you.​