Public Holidays
Under the National Employment Standards (NES), every employee is entitled to be absent from work on a public holiday. Employers can ask an employee to work on a public holiday, but they must actually ask. Putting someone on the roster is not enough.
Legislation: Fair Work Act 2009 (Cth) ss 114 to 116 | Category: Leave
What Are Public Holidays?
Public holidays are days on which employees are entitled to be absent from work. Full-time and part-time employees are paid for the ordinary hours they would have worked. Employees who do work on a public holiday usually get penalty rates under their award or agreement.
The NES sets 8 national public holidays:
- New Year’s Day (1 January)
- Australia Day (26 January)
- Good Friday
- Easter Monday
- Anzac Day (25 April)
- King’s Birthday
- Christmas Day (25 December)
- Boxing Day (26 December)
Any other day declared by state or territory law also counts. Examples include Easter Saturday, Easter Sunday, Labour Day, Melbourne Cup Day and show days. Dates and additional days vary by state, and some vary by region within a state.
Can You Ask Employees to Work on a Public Holiday?
Yes, but the order matters.
- Ask first. The employer must make a genuine request, meaning the employee has a real choice to say yes or no.
- The request must be reasonable.
- The employee can refuse if the request isn’t reasonable, or if their refusal is reasonable.
- Only then can an employer require the work, and only if the request was reasonable and the refusal wasn’t.
Section 114(4) sets out what counts as reasonable. The factors include:
- the nature of the business and the work
- the employee’s personal circumstances, including family responsibilities
- whether the employee expected to work public holidays
- whether the employee is paid penalty rates or a loaded rate that reflects public holiday work
- the amount of notice given
- the type of employment (full-time, part-time, casual or shift worker)
Rostering alone is a breach
In CFMMEU v OS MCAP Pty Ltd [2023] FCAFC 51, a labour hire company rostered mine workers on Christmas Day and Boxing Day without asking them. The Full Federal Court found this breached s114, even though the work itself may have been reasonable. The High Court refused leave to appeal.
A clause in a contract, award or enterprise agreement that says staff “may be required” to work public holidays is not a request either. To comply:
- Issue draft rosters that clearly show public holiday shifts are requests.
- Give employees a genuine chance to accept or decline.
- Consider their reasons before finalising the roster.
- Keep a record of each request and response.
Payment for Public Holidays
- Full-time and part-time employees who don’t work are paid their base rate for the ordinary hours they would have worked that day.
- If a part-timer doesn’t normally work that day, they aren’t paid for it.
- Casuals can be absent on a public holiday but aren’t paid for it. If they work, they get public holiday penalty rates under their award or agreement.
- Employees who work get the penalty rates in their award or agreement. These are commonly 225% to 250% of the ordinary rate.
- Base rate excludes loadings, allowances, bonuses and penalty rates.
Key Compliance Points for Employers
- Check each location. Public holidays differ between states, territories and some regions.
- Watch for substitute days. When a holiday falls on a weekend, state law usually declares a substitute weekday. Awards, agreements, and agreement between employer and employee can also substitute another day.
- Leave doesn’t run on public holidays. A public holiday during annual or paid personal leave is paid as a public holiday, and no leave is deducted.
- Get a real yes before rostering. A roster is not a request.
- Record requests and refusals, particularly for Christmas, Boxing Day, Easter and Anzac Day.
- Stand-down and shutdown periods don’t remove the obligation to pay eligible employees for public holidays that fall within them.
Frequently Asked Questions
How many public holidays are there in Australia?
The NES sets 8 national public holidays. Each state and territory declares extra days, so the total depends on where the employee works. Most states have between 10 and 13 in a year.
Can I make an employee work on a public holiday?
Only after you’ve made a reasonable request and they’ve either agreed or refused unreasonably. You can’t skip the request by rostering them on or relying on a contract clause.
Do part-time employees get paid for public holidays?
Only if the public holiday falls on a day they would normally work. They’re paid for the ordinary hours they would have worked.
Do casuals get paid public holidays?
No. Casuals can take the day off but aren’t paid for it. If they work, they’re entitled to public holiday penalty rates under their award or agreement.
What if a public holiday falls during annual leave?
The day is paid as a public holiday, not as annual leave. It isn’t deducted from the employee’s leave balance.
