For most workers, public holidays mean a day off work with pay to share with family and friends in celebration of significant cultural, social or religious occasions. In the retail and fast food industries, especially, if only it were that straight forward!
Because many retailers and fast food operators have high levels of part-time and casual employment and most shops elect to open for trade on some public holidays, it is often more complex.
Unlike many other industries where their businesses or offices close on public holidays (think about head offices, the stock market and public offices), many retailers and fast food operators elect to open on these days, where they are allowed.
For most retail, fast food and warehouse workers your rights on public holidays – whether you can be required to work and what you should be paid – are determined by the interaction of at least three State and Federal laws in conjunction with your Award or Agreement. And sometimes, even when the day is not a publicly recognised public holiday, your Agreement may specify that you are entitled to treat that day as a public holiday, for example when there are “substituted” public holidays.
It’s not always easy for you to work out your rights and it’s unfortunately common for some employers to get it wrong too.
Let’s attempt to untangle the mess so you know your rights next public holiday.
For most SDA members your Enterprise Agreement details most, if not all, of your entitlements.
Your Enterprise Agreement entitlements are read in conjunction with the National Employment Standards.
Your Enterprise Agreement entitlements may include:
Most Enterprise Agreements specify the public holiday penalty rate applicable to your ordinary rate of pay for work performed on public holidays, this typically varies between +100% to +175% in most cases. Check your specific Enterprise Agreement for your rate of pay.
Time off with pay
If you are ordinarily rostered to work on a day on which a public holiday falls, in most cases you are entitled to a day off work with pay. Exceptions include for casual employees and, depending on the circumstances, substituted public holidays which will depend on your rostered hours and the specifics of your Agreement and the National Employment Standards.
Voluntary work arrangements
Depending on your Enterprise Agreement there are various minimum entitlements which apply from strict voluntary work through to the minimum entitlement to the National Employment Standards – see below for further information.
Non-working day entitlements
For many full-time and some part-time employees, depending on the specific Enterprise Agreement and the roster or pattern of hours, there is an entitlement to an additional day off with pay (or a ‘day in lieu’) for public holidays which fall on a non-working day. This is a common term of many Enterprise Agreements to compensate permanent workers for non-standard working hours, who would otherwise miss out on any benefit because of the days they normally work.
Protections against roster changes to avoid public holiday entitlements.
Many Agreements also provide that it is prohibited to change a roster with the intent of avoiding the payment of penalties or loadings, or other benefits applicable.
If you are not covered by an Enterprise Agreement, it is likely you are covered by an Award which applies to your industry or occupation.
Your Award entitlements are read in conjunction with the National Employment Standards.
Most Awards simply refer to the NES and then provide limited supplementation regarding penalty rates and some limited other matters.
For example, your Award will specify the public holiday penalty rate applicable to your ordinary rate of pay for work performed on public holidays, this typically varies between +100% to +175% in most cases. Check your specific Award for your rate of pay.
So what happens if you are not covered by and Award or an Enterprise Agreement?
NATIONAL EMPLOYMENT STANDARDS
Under the Fair Work Act 2009 (Cth) the National Employment Standards (NES) provide that all employees covered by the national workplace relations system are entitled to be absent from work on a day or part-day that is a public holiday.
The NES also provides that your employer may request you to work on a public holiday if the request is reasonable.
Finally the NES provides that if your employer requests you to work on a public holiday, you may refuse the request if:
- the request is not reasonable; or
- the refusal is reasonable.
SO WHAT’S (UN)REASONABLE?
In determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account:
- the nature of your workplace or enterprise (including its operational requirements), and the nature of the your work;
- your personal circumstances, including family responsibilities;
- whether you could reasonably expect that your employer might request work on the public holiday;
- whether you are entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;
- your type of employment (for example, whether full-time, part-time, casual or shiftwork);
- the amount of notice in advance of the public holiday given by your employer when making the request; and
- in relation to the refusal of a request—the amount of notice in advance of the public holiday given by you when refusing the request.
These entitlements apply irrespective of whether or not you are covered by an Award or an Agreement and your contract of employment or any individual agreement you have reached with your employer cannot override these rights.
SO WHAT ARE ‘PUBLIC HOLIDAYS’ IN NSW?
This is determined by taking a closer look at the NES in conjunction with the Public Holidays Act 2010 (NSW).
In NSW the following public holidays are declared for the whole State:
- "New Year’s Day", public holiday on 1 January. When 1 January is a Saturday or Sunday, there is to be an additional public holiday on the following Monday.
- "Australia Day", public holiday on 26 January. When 26 January is a Saturday or Sunday, there is to be no public holiday on that day and instead the following Monday is to be a public holiday.
- "Good Friday", public holiday on the Friday publicly observed as Good Friday.
- "Easter Saturday", public holiday on the day after Good Friday.
- "Easter Sunday", public holiday on the Sunday following Good Friday.
- "Easter Monday”, public holiday on the Monday following Good Friday.
- "Anzac Day", public holiday on 25 April.
- "Queen’s Birthday”, public holiday on the second Monday in June.
- "Labour Day", public holiday on the first Monday in October.
- "Christmas Day", public holiday on 25 December. When 25 December is a Saturday, there is to be an additional public holiday on the following Monday. When 25 December is a Sunday, there is to be an additional public holiday on the following Tuesday.
- "Boxing Day", public holiday on 26 December. When 26 December is a Saturday, there is to be an additional public holiday on the following Monday. When 26 December is a Sunday, there is to be an additional public holiday on the following Tuesday.
In NSW, the Minister may also declare additional public holidays, substituted public holidays or local event days; you should keep in mind that local event days are not recognised under the NES and are essentially meaningless for the vast majority of workers!
AM I ENTITLED TO BE PAID ON PUBLIC HOLIDAYS?
Under the NES if an employee absent from his or her employment on a day or part-day that is a public holiday, the 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. Noting, however, that if the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment. For example, the employee is not entitled to payment if the employee is a casual employee who is not rostered on for the public holiday, or is a part-time employee whose part-time hours do not include the day of the week on which the public holiday occurs.
This is a minimum entitlement applicable to all employees covered by the national workplace relations system.
Awards and Agreement can, and often do, provide enhanced entitlements.
CAN SHOPS OPEN FOR TRADE ON THESE DAYS?
Overlaying these rights and obligations are specific laws in NSW which govern whether shops can open on these public holidays and whether or not you can be required to work on these days.
Under the Shop Trading Act 2008 (NSW) there are certain public holidays which are ‘restricted trading days’ in NSW when shops must remain closed, unless they are exempt because they are a certain classes of shop, small shops or they are located in recognised tourist zones.
Restricted trading days in NSW are:
- Christmas Day
- Boxing Day
- Good Friday
- Easter Sunday; and
- Anzac Day (before 1 pm)
VOLUNTARY WORK ON A RESTRICTED TRADING DAY
Whether or not a shop is allowed to open for trade, the law is very clear.
If the shop is exempt and thereby allowed to open for trade on a restricted trading day, the exempted shop must be staffed only by persons who have freely elected to work on that day, without any coercion, harassment, threat or intimidation by or on behalf of the occupier of the shop (not applicable to small shops as defined).
A shop is deemed to have been open if at any time:
- goods were sold or offered or exposed for sale at the shop, or
- goods were available for inspection by persons within the shop, or
- goods that had previously been sold or ordered were delivered or were available for delivery at the shop to the person who bought or ordered them or to some other person on behalf of that person, or
- orders for goods were received by a person in attendance at the shop, or
- goods were received, or unpacked or otherwise prepared, at the shop for sale at the shop, or
- stocktaking was carried out at the shop in respect of goods offered or exposed for sale at the shop.