Article by: hradvanceprofessionals.com.au
The Fair Work Act (s115) is applied in conjunction with state and territory public holiday laws in determining which days are declared a public holiday, or part-day holiday, for the relevant state or territory.
These laws also determine the relevant public holiday penalty rate under the applicable modern award or enterprise agreement when work is performed on a designated public holiday.
The following are the declared public holidays, and part-day holidays, over the Christmas and New Year period.
All states and territories
Friday 25 December 2020 – Christmas Day
Saturday 26 December 2020 – Boxing Day (except TAS, NT and SA)
Monday 28 December 2020 – Additional Boxing Day public holiday (for all states except TAS, NT and SA where it is a substitute Boxing Day)
Friday 1 January 2021 – New Year’s Day
Monday 27 January 2021 – Australia Day public holiday
South Australia – Christmas Eve and New Year’s Eve
The following dates will be a part-day public holiday for South Australia:
Christmas Eve – Thursday 24 December 2020 – 7pm to midnight
New Year’s Eve – Thursday 31 December 2020 – 7pm to midnight
Payment for work on a holiday – award/agreement-covered employees
The public holiday provisions of the applicable modern award or enterprise agreement determine the penalty rate for work performed on a public holiday.
A modern award may provide a different penalty rate for work performed by an employee on Christmas Day. For example, the Road Transport and Distribution Award 2010 (cl 28.2) provides that work performed on Christmas Day or Good Friday is paid at an additional double time (total of triple time).
Reference should therefore be made to the applicable modern award or enterprise agreement to determine the appropriate penalty rate for work performed on Christmas Day.
Award/agreement free employees
There is no statutory penalty rate for an award/agreement-free employee who works on a declared public holiday – any additional payment is determined by an individual’s contact of employment.
State trading laws
The Fair Work Act (s27) does not exclude certain state and territory laws, including those with respect to “business trading hours”.
While such state and territory laws mainly regulate opening and closing times for retail shops and retail trading on public holidays, there may be provisions which relate to the employment of retail workers.
For example, the Retail Trading Act 2008 [NSW] (s8A) states that “a shop is not required to be closed on Boxing Day if the shop is staffed only by persons who have freely elected to work on that day.”
This means it is an essential condition that staff must freely elect to work. That is, an employee must volunteer to work without any coercion, harassment, threat or intimidation, by a retailer.
A formal complaint from an employee being compelled to work will be referred to inspectors for investigation and possible prosecution action.
Reference should be made to the relevant state or territory retail trading law to determine whether employees are permitted to work on certain public holidays.
Where to from here?
If you are unsure about your obligations contact our Workplace Relations Team on 1300 391 426.
If you are not yet a member, follow the link below to sign up today.
2021 Public Holidays
A full list of the 2021 public holiday’s is now available on the members portal.
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