Believe it or not, the Easter and ANZAC day public holidays are right around the corner. For some employers, the upcoming public holidays will be business as usual. However, many employers who have had to stand down staff as a result of a stoppage of work, or who have had employees voluntarily enter into a period of Leave Without Pay (LWOP) as a result of COVID-19, will be wondering how public holidays entitlements apply to their employees during this time.
Below is a summary of which days are public holidays under the National Employment Standards (NES) or modern award in each state and territory, and some further information on employee entitlements to public holiday provisions during periods of stand down and LWOP to assist employers in navigating this unique time.
Public Holidays under the National Employment Standards
All employers should check which days are considered public holidays in their states or territories, in line with any public holiday provisions (i.e. penalty rates for time worked) outlined in employment contracts, modern awards or enterprise agreements covering their employees. This is the first step before determining what entitlements may be available to their staff who work, or who are not required to work, on a listed public holiday.
Disclaimer: This public holiday memo is only for employees covered by the NES or a Modern Award. If you have your own Enterprise Agreement (EBA) or have purchased a store with transferring employees from an entity that has an enterprise agreement, please refer to the provisions of that Enterprise Agreement as it may change the public holidays or create additional public holidays.
For businesses operating as usual, the public holiday provisions of the Fair Work Act (Section 114.) will continue to apply. Employees with ordinary hours of work on the day on which the public holidays fall, are entitled to a paid day off. Employers can request that an employee works on a given public holiday, and employers should check the award, EBA and/or employment contract which applies to the employee to see which provisions (e.g. penalty rates) may apply to employees who work on a listed public holiday. Click here to see a related article on employer options if an employee does not wish to work on a public holiday, which is their entitlement under the NES.
How do the public holiday provisions apply to employees stood down or on LWOP during this period?
See our article on stand downs under the Fair Work Act to see if this applies to you.
Employees who are stood down in line with section 524 and 525 of the Act during a period which includes public holidays are entitled to be paid their base rate of pay for ordinary hours of work which would have been performed on this day, had the employee not been stood down.
This applies because a public holiday under the Act is considered an authorised absence, and the stand down provisions of the act do not apply when an employee is on a period of approved leave (paid or unpaid), or if the employee is authorised to absent from work – i.e. as for a public holiday.
What about employees who have not been stood down, but have by agreement entered into a period of Leave Without Pay (LWOP)?
Employees who have voluntarily entered into a period of LWOP to assist the business during the COVID-19 crisis are not required to be paid for a public holiday not worked in line with the Act. Under section 116. of the Act, employees who do not have ordinary hours of work on a day on which a public holiday falls, are not entitled to payment – i.e. voluntarily entering into a period of LWOP. However, employers can choose to pay public holiday entitlements to employees who have entered into these arrangements (i.e. a paid day off) if they wish.
Clients of ER Strategies can access a complete Public Holiday Schedule for 2020 using your Online HR login, and selecting the ‘Useful Links’ tab on your home page once logged in. Clients of ER Strategies can also call the team on 1300 55 66 37 to discuss their specific situation.
Need more information? Click here to see ER Strategies’ COVID-19 resources, or call the team on 1300 55 66 37 to discuss your specific situation.