11 Dec IS YOUR BUSINESS READY FOR THE PUBLIC HOLIDAYS OVER THE CHRISTMAS BREAK?

Christmas time is nearly here, and so too are the public holidays!  This means that many businesses are getting ready for the busy Christmas period (particularly those in the retail industry) or getting ready to close down.

We have listed four points employers should take into account to ensure that they comply with their obligations in regards to public holidays:

1. Be aware of the public holiday dates

The key upcoming public holiday dates are as follows:

• Christmas Day – Monday 25 December;
• Boxing Day – Tuesday 26 December; and
• New Year’s Day – Monday 1 January.

South Australia also has part-day public holidays from 7.00pm to midnight on:

• Christmas Eve – Sunday 24 December; and
• New Year’s Eve – Sunday 31 December.

2. Make sure you provide employees with their correct pay entitlements

 The National Employment Standards (“NES”) provide an entitlement for employees to be absent from work on a public holiday, without loss of pay.  This means full-time and part-time employees who would normally work on the day a public holiday falls should be paid their base rate of pay for the ordinary hours they would have worked.

Casual employees do not receive payment for public holidays, unless they actually work on the day.

If an employee does work on a public holiday, you should refer to any applicable Modern Award or Enterprise Agreement or other registered agreement applicable to the employee’s employment to determine what they should be paid.

Generally, employees are entitled to penalty rates for working on a public holiday. Some Modern Awards and Enterprise Agreements or other registered agreements also provide that an employee can:

• take time off in lieu for working a public holiday;
• substitute the public holiday for an alternative day; or
• add a day to their annual leave balance.

3. What if an employee refuses to work on a public holiday?

The NES also protects an employee’s workplace right to reasonably refuse to work on a public holiday.

In determining whether refusal of such a request (or a request itself) to work on a public holiday is reasonable, the following must be taken into account:

• the employee’s personal circumstances;
• whether the employee could reasonably expect the employer might request for them to work on the public holiday;
• the needs of the workplace and the nature of the work performed by the employee;
• the type of employment (for example, full-time, part-time or casual);
• whether the employee’s salary includes work on a public holiday;
• the amount of notice given by the employer in advance of the public holiday when making the request;
• the amount of notice given by the employee in advance of the public holiday refusing the request; and
• any other relevant matter.

4. What if an employee is on paid leave?

If the employee is on paid leave on the day a public holiday falls, the day will be treated as a public holiday.  It will not be treated as a paid leave day.

Accordingly, the day should not be taken off an employee’s annual or personal leave balance and the employee should be paid their base rate of pay for the day.

 If you have any questions about public holidays, contact the team at HR Law today.