Do you have to recognise a regional public holiday?

Do you have to recognise a regional public holiday?
By Paul Munro on 20 September 2017 Should employees be paid public holiday rates for regional holidays?

This question was recently sent to our Ask an Expert service.

Q We are a company with a small regional office located in Lismore, in the northern rivers area of New South Wales. We have two sales representatives who are full-time employees at this office who work Monday to Friday inclusive. The employees have advised head office that Thursday 21 September has been declared a part-day public holiday (12 midday-6pm) for the Lismore area by the NSW government.

Both have asked whether they will be paid at the appropriate public holiday penalty rate under the applicable modern award (Commercial Sales Award 2010), or time off in lieu, to be taken at an agreed date in the future. The office in Lismore has been there for many years and this is the first time this public holiday has been mentioned.

Is this day considered to be a statutory public holiday or is it optional to observe it?

A The day is regarded as a statutory public holiday for the purpose of the National Employment Standards (NES). This is because the day has been declared a part-day holiday under the Public Holidays Act 2010 [NSW]. The NES recognises any holiday declared under a state or territory law.

The NES (s115) defines a public holiday to mean the list of holidays prescribed in the Act but also ‘any other day, or part-day, declared or prescribed by a state or a territory law to be observed generally within a state or a territory, or a region of a state or a territory, as a public holiday.’

The Commercial Sales Award 2010 (cl.27) refers to the NES with respect to identifying those days as a public holiday for the purposes of the Award. As the NES recognises this day as a part-day public holiday, it is therefore a holiday for the purposes of the modern award. The award provides that an employee who works on a public holiday must be paid at double time and a half, with a minimum payment of three hours.

The award also allows an employer and an employee to agree to substitute another day for any public holiday prescribed by the NES.

In this case, if either employee performs work on the part-day holiday they must be paid at the public holiday penalty rate or have another part-day off in substitution.

What does this mean?

Employers should be aware that the NES also recognises public holidays other than those listed in section 115 of the Act. The NES includes additional holidays declared by the relevant government for a state or territory, or a region of a state or a territory, as well as part-day holidays, provided the day is declared a holiday under the relevant state or territory public holiday law.

Both NSW and Queensland declare additional holidays and part-day holidays for many regional districts within each state. Victoria also has a number of districts that may observe another day as a holiday instead of Melbourne Cup Day. Other states and territories also have declared public holidays that are regional or district-based, in addition to the state or territory-wide holidays.

The bottom line: An employer should check the relevant state or territory government website to determine those days declared as a public holiday, or part-day holiday, for a particular region or district within a state or territory.

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