Easter public holidays 2018: headaches and hiccups

Easter public holidays 2018: headaches and hiccups

By Paul Munro on 12 March 2018 The Easter holiday period often creates payroll issues for employers. What penalty rates should be paid, and what can you do if an employee refuses to work on a public holiday.

The following days are the public holidays declared by the relevant state and territory government over this year’s Easter period.

All states and territories


Good Friday – Friday 30 March
Easter Saturday – Saturday 31 March (except Tasmania and Western Australia)
Easter Sunday – Sunday 1 April (New South Wales, Victoria, Queensland and Australian Capital Territory)
Easter Monday – Monday 2 April
Anzac Day – Wednesday 25 April

Work on a public holiday


Payment for any work performed by an employee on a public holiday is determined by the applicable modern award or enterprise agreement. Payment for work performed on a public holiday for an award/agreement free employee is subject to the terms of an employee’s contract of employment.

Work on Good Friday


A modern award may provide a greater penalty rate for work performed on Good Friday. For example, the Road Transport and Distribution Award 2010 provides that all time worked on Good Friday is paid at treble time, while the Meat Industry Award 2010 provides that all employees (including casuals) who work on Good Friday will be paid at double time and a half for the first four hours and treble time thereafter.

Reference should be made to the applicable modern award or enterprise agreement to determine the appropriate penalty rate for work performed on Good Friday.

Work on Easter Saturday


Apart from Western Australia and Tasmania, Easter Saturday is a declared public holiday in all other states and territories. This means work performed on Easter Saturday in most jurisdictions will be paid at the appropriate public holiday penalty rate.

In Western Australia and Tasmania, work performed on Easter Saturday would attract the appropriate Saturday work penalty rate prescribed by the applicable modern award or enterprise agreement.

Work on Easter Sunday

 
New South Wales, Victoria, Queensland and the Australian Capital Territory have Easter Sunday declared as a public holiday for the state/territory. This means that any work performed on Easter Sunday in these jurisdictions will attract the appropriate public holiday penalty rate prescribed by the applicable modern award or enterprise agreement.

In the other three states and the Northern Territory,  no public holiday law has declared Easter Sunday as a public holiday. Any work performed in these jurisdictions would be paid at the appropriate Sunday penalty rate prescribed by the applicable modern award or enterprise agreement.

Requirement to work on a holiday


What if an employee refuses to work on a public holiday over the Easter period? The Fair Work Act (s114) states that an employer may request an employee to work on a public holiday if the request is reasonable. Likewise, an employee can refuse to work on a public holiday if the employer's request is not reasonable or the employee's refusal is reasonable. In the former situation, the onus of proof is on the employer, in the latter it is on the employee(s).

There is nothing in the Fair Work Act to support a proposition that employees can only be requested to volunteer to work on public holidays or that work on public holidays is prohibited.

In determining whether an employer’s request is reasonable, or a refusal of a request is reasonable, the following must be taken into account:
  • the nature of an employer's workplace and the nature of an employee’s work
  • an employee's personal circumstances, including family responsibilities
  • whether an employee could reasonably expect an employer might request work on the public holiday
  • whether an employee is entitled to receive overtime or other penalty payments or other compensation that reflects an expectation to work on public holidays
  • the type of employment of an employee (for example, whether full-time, part-time, casual, or shift work)
  • the amount of notice in advance of the public holiday given by an employer when making the request
  • the amount of notice given by an employee when refusing a request to work on a public holiday.
The relevance of each of these factors and the weight to be given to each will vary according to the particular circumstances. In some cases, a single factor will be of great importance and outweigh all others, in others there will be a balancing exercise between factors.

The Explanatory Memorandum to the Fair Work Bill 2009 provides some examples to illustrate this point. Where an employee is employed in a workplace that requires a certain level of staffing on a public holiday (such as a hospital) and has been given warning of the likelihood of being required to work on public holidays, a request by an employer to work may be considered reasonable.

On the other hand, an employee's refusal to work on a public holiday may be reasonable where, for example, the employee has notified the employer in advance that he or she will not be able to work on the public holiday because of family commitments.

(Then) Fair Work Australia held that even if an employee does have good reasons for refusing his/her employer’s request to work on a public holiday, if he/she does not explain those reasons to his/her employer then his/her refusal to work will not be reasonable. In other words, an employee must explain his/her reasons for refusing to work on a public holiday. It should be noted the tribunal also determined that the employee’s refusal to work on a public holiday was not a valid reason for dismissal — the employee receiving compensation as a remedy.

Unexplained absence before and/or after a public holiday


The Fair Work Act (s116) states that if an employee is absent from his/her employment on a day or part-day that is a public holiday, an employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work on the day or part-day. No modern award contains terms which permit an employer to deduct payment for a public holiday where an employee is absent the day before or after without reasonable excuse.

While unauthorised absence may be grounds for taking disciplinary action, an employee would still be entitled to payment for a public holiday that falls on a day the employee normally works.

Rostered day off (RDO)


A modern award may contain a provision which states that where a full-time employee’s ordinary hours are arranged to include a RDO and the day off falls on a public holiday, an employee is usually entitled, at the discretion of an employer, to either:
  • 7.6 hours of pay at the ordinary time rate
  • 7.6 hours of extra annual leave, or
  • a substitute day off on an alternative week day.
This provision does not apply in relation to days off that are part of an employee’s regular roster or pattern of ordinary hours.

‘Short day’ Friday


Some workplaces work the weekly hours of work on the basis of eight hours, Monday to Thursday, with a shorter working day of six hours on Friday. Employers in this situation are often approached by employees claiming 7.6 hours pay for the Friday. A common misconception among employees is that a public holiday is 'worth' a specific amount of time, such as 7.6 hours.

Industrial tribunals, however, have determined that such an arrangement of hours is ‘non-standard’ (that is, employees are not working 7.6 hours each day.) Technically, in this case, an employee carries a credit of 0.4 hours per day for the first four days (1.6 hours) over to the Friday to achieve an average of 7.6 hours per day, resulting in 38 hours pay for that week.

In the above circumstance, if employees were paid 7.6 hours for Good Friday they would incorrectly receive 39.6 hours pay for that week, instead of 38 hours.

Public holidays and other leave

Annual leave & personal/carer’s leave

Under the Fair Work Act (sections 89 and 98), if a period of paid annual leave or personal/carer’s leave includes a day or part-day that is a public holiday an employee is taken to be on the public holiday and not on a period of annual leave or personal/carer’s leave. If an employee returns from annual leave on the agreed date prior to taking annual leave, or upon an employee’s return to work from a period of paid personal/carer’s leave, the employee’s annual leave or personal/carer’s leave balance (as the case may be) is to be re-credited one day for each public holiday falling during the period of leave.

Long service leave

The period of long service leave is extended when a public holiday falls under Australian Capital Territory, New South Wales, Queensland, Tasmania, Victoria and Western Australia legislation. Long service leave legislation in South Australia and Northern Territory does NOT extend the period of leave when a public holiday falls.

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