One-off Public Holiday for the mourning of Queen’s passing
The Federal Government has gazetted a one-off public holiday on Thursday 22 September 2022 as a national day of mourning to mark the death of Queen Elizabeth II. For Victorians that will mean a four-day weekend in conjunction with the Grand Final public holiday on Friday 23 September.
So what does this mean in practical terms for employees under Awards, Enterprise Agreements and/or contracts of employment:
- The paid public holiday applies to all full-time employees.
- In regards to part-time and casual employees, it will depend on whether they are normally rostered to work on the Thursday. If so then they will be entitled to payment for the day or part day they normally work on the Thursday (see below Section 116 from the Fair Work Act 2009).
- The Fair Work Act 2009 also identifies when it is reasonable to refuse a direction to work on a public holiday and the reasons are identified in the Public Holiday Clause (see below Section 114 of the Fair Work Act 2009).
- Some employees covered by certain Enterprise Agreements have provisions for rostered part-time/casual employees to be provided the payment on a pro-rata basis for the number of hours they would normally work in a week. The ASU suggests members contact us if they have a query about this.
- Employees covered by an Award are entitled to penalty payments (including shift penalties where relevant) for those who are directed to work on a public holiday. For example, see below the provisions of the Clerks Private Sector Award 2020:
24.4 Public holidays
(a) An employer must pay an employee at the rate of 250% of the minimum hourly rate for hours worked on a public holiday or a substituted day.
(b) Despite clause 24.4(a), if an employee works on both a public holiday and the substituted day, the employee is entitled to be paid for one of the days at the penalty rate specified in clause 24.4(a).
(c) The employee may choose which day the penalty rate is applied to.
(d) An employee required to work on a public holiday is entitled to not less than 4 hours’ pay.
- Awards also provide for the ability to transfer the public holiday to another day by genuine agreement between the parties.
A final note of importance is that some employees will have individual contracts that ‘off-set’ penalty payments and provisions in recognition of their overall salary. In regards to the ability to access a public holiday or be paid penalty rates for working on the public holiday it is best to speak to the ASU about this in regard to your particular circumstance and/or contract.
Relevant provisions from the Fair Work Act 2009 are copied below:
FAIR WORK ACT 2009 – SECT 114 Entitlement to be absent from employment on public holiday
FAIR WORK ACT 2009 – SECT 114
Entitlement to be absent from employment on public holiday
Employee entitled to be absent on public holiday
(1) An employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes.
Reasonable requests to work on public holidays
(2) However, an employer may request an employee to work on a public holiday if the request is reasonable.
(3) If an employer requests an employee to work on a public holiday, the employee may refuse the request if:
(a) the request is not reasonable; or
(b) the refusal is reasonable.
(4) 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:
(a) the nature of the employer‘s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;
(b) the employee‘s personal circumstances, including family responsibilities;
(c) whether the employee could reasonably expect that the employer might request work on the public holiday;
(d) whether the employee is 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;
(e) the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork);
(f) the amount of notice in advance of the public holiday given by the employer when making the request;
(g) in relation to the refusal of a request–the amount of notice in advance of the public holiday given by the employee when refusing the request;
(h) any other relevant matter.
FAIR WORK ACT 2009 – SECT 116 Payment for absence on public holiday
FAIR WORK ACT 2009 – SECT 116
Payment for absence on public holiday
If, in accordance with this Division, an employee is 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.
Note: If the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under this section. 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.
If you have any queries or do not believe you have been paid properly contact the ASU on 03 9342 3300 or at firstname.lastname@example.org