Upcoming public holiday – Managing your employees’ entitlements

A public holiday is often something employees look forward to – a day to rest, recharge and spend time with family and friends. For employers, however, public holidays can raise practical and legal questions about employee entitlements and work arrangements.

These issues can become more complex where your workforce operates across different States and Territories and public holiday dates do not align, particularly where projects remain active across jurisdictions.

Which public holiday calendar should applies?

Start with the employment contract

The first step is to review the employee’s contract of employment.

An employment contract will often specify which jurisdiction (for example, ACT, NSW or QLD) governs the employment relationship. This will generally determine which public holiday calendar applies.

Some contracts may also contain provisions dealing specifically with conflicting public holidays between States and Territories, particularly where employees work across borders or on national projects. Reviewing these clauses early will help clarify your obligations and avoid disputes.

The National Employment Standards (NES) and Modern Awards

Under the National Employment Standards (NES) contained in the Fair Work Act 2009 (Cth), an employee is entitled to be absent from work on a public holiday in the place where they are based for work purposes.

For employers covered by the Fair Work Act 2009, the NES sets the minimum entitlement.

If your business is covered by the Building and Construction General On-Site Award 2020 (Award), the Award confirms that the NES provisions relating to public holidays apply.

Can an Employer Request an Employee to Work?

An employer may request an employee to work on a public holiday if the request is reasonable. An employee may refuse the request if either:

• the request is not reasonable; or
• the refusal is reasonable.

Whether a request or refusal is reasonable depends on various factors, including:

• the nature of the workplace or enterprise
• the employee’s personal circumstances (including family responsibilities)
• whether penalty rates or other compensation apply
• the amount of notice given
• the employee’s employment type (e.g. full-time, part-time, casual).

An employer and employee may also agree to substitute another day for the public holiday. This must be a genuine agreement.

Employee entitlements for public holidays

Payment for Not Working

Permanent employees (full-time and part-time) who would ordinarily have worked on the day a public holiday falls are entitled to be paid their base rate of pay for their ordinary hours of work.

Casual employees are generally not entitled to payment if they do not work on a public holiday.

Payment for Working

If an employee is required to work on a public holiday, penalty rates will typically apply. The applicable rate will depend on:

• the relevant modern award; or
• any applicable enterprise agreement.

If your business operates under an enterprise agreement, carefully review the relevant clauses to confirm any additional entitlements, substitution arrangements, or rostering requirements that may apply.

Practical Steps for Employers

To effectively manage public holiday arrangements, employers should:

• Review employment contracts to confirm the governing jurisdiction
• Check applicable awards or enterprise agreements
• Communicate early with employees about work expectations
• Assess the reasonableness of any request to work
• Keep written records of any substitution agreements

Clear communication and proactive planning can significantly reduce the risk of disputes.

For questions about your workplace obligations or policy requirements, contact the Workplace Relations Team:

📞 (02) 6175 5900
📧 workplace@mba.org.au