THE NATIONAL EMPLOYMENT STANDARDS PUBLIC HOLIDAYS

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1 THE NATIONAL EMPLOYMENT STANDARDS PUBLIC HOLIDAYS The National Employment Standards ( the NES ) are a statutory set of 10 minimum employment entitlements provided for in the Fair Work Act 2009 ( the Act ). The NES apply to employers and employees operating in the National System from 1 January, This fact sheet deals with public holidays. In some cases, a modern award or an industrial instrument can expand on or vary the entitlement provided for in the NES. Accordingly, in determining a particular employee s terms and conditions of employment, it is advisable to refer to all the NES, any relevant modern award or industrial instrument and the employee s contract of employment. PUBLIC HOLIDAYS The NES recognise public holidays to include the following days: 1 January (New Year's Day); 26 January (Australia Day); Good Friday; Easter Monday; 25 April (Anzac Day); the Queen's birthday holiday (on the day on which it is celebrated in a State or Territory or a region of a State or Territory); 25 December (Christmas Day); 26 December (Boxing Day); and any other day, or part-day, declared under a State or Territory law to be observed within the State or Territory, or a region of the State or Territory, as a public holiday. N.B. The Public Holidays Act 2010 (NSW) provides for additional days and substitute days to be recognised as public holidays in NSW, either for the whole or part of the State. The Public Holidays Act 2010 (NSW) also allows for days of special significance in a community to be observed as a local event day. A local event day is not a public holiday. For a full list of the recognised public holidays in NSW for 2015, please see below from page 4. Page 1 of 6

2 Substitution rules apply where a State or Territory has substituted one of the abovementioned public holidays for another day. The substituted day will be deemed to be the public holiday. For example, if 26 January (Australia Day) falls on a Sunday and the NSW Government substitutes the following Monday as the substitute public holiday, only the Monday would be considered a public holiday in NSW and not the Sunday. Modern awards and enterprise agreements may contain provisions dealing with substituted public holidays at a particular workplace. Clause 37.1 of the Hospitality Industry (General) Award 2010 ( the Hospitality Award ) allows for substitution of public holidays. Award/agreement free employees (those employees to whom neither a modern award nor an enterprise agreement applies) and employers may agree on the substitution of a public holiday for another day. Any such agreement should be recorded in writing. ENTITLEMENT ON A PUBLIC HOLIDAY The NES provides that an employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday. An employer may, however, request an employee to work on a public holiday. The employee may only refuse the request if the request was not reasonable or if the refusal is reasonable. In determining whether a request or a refusal of a request, to work on a public holiday is reasonable, the following factors must be taken into account: a) the nature of the employer's workplace (including its operational requirements), and the nature of the work performed by the employee; b) the employee's personal circumstances, including their 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 (e.g. whether full time, part time, casual or shiftwork); f) the amount of notice given by the employer when making the request to work on the public holiday; g) the amount of notice given by the employee if refusing the request to work on the public holiday; h) any other relevant matters. PAYMENT ON A PUBLIC HOLIDAY Page 2 of 6

3 The NES provide that if an employee is absent on a public holiday, and that day would generally constitute part of the employee s ordinary working hours, they are entitled to receive payment for their absence at their base rate of pay. If the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment. For example, if the employee is a casual employee who is not rostered to work on 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. However, it is important to note that a relevant modern award or industrial instrument and the employee s contract of employment may provide for other payments or entitlements to be made to the employee on a public holiday. If the Hospitality Industry (General) Award 2010 ( the Hospitality Award ) applies to you and your employees, you should refer to clauses 32.2 and INTERACTION WITH ANNUAL LEAVE AND PERSONAL LEAVE The NES provides that if an employee is absent on a period of paid annual leave or paid personal leave and a public holiday falls during that period, the employee is taken not to be on paid annual leave or paid personal leave. For further information please refer to the AHA NSW s Annual Leave and Personal/Carer s Leave and Compassionate Leave Fact Sheets. For further information on public holidays please contact the AHA NSW Legal and Industrial Affairs Department on (02) Page 3 of 6

4 LISTING OF 2015 PUBLIC HOLIDAY (and adjacent 2014 and 2016 public holidays) GENERAL PUBLIC HOLIDAYS FOR NSW 2014 THURSDAY 25 DECEMBER 2014 CHRISTMAS DAY FRIDAY 26 DECEMBER 2014 BOXING DAY 2015 THURSDAY 1 JANUARY 2015 NEW YEARS DAY MONDAY 26 JANUARY 2015 AUSTRALIA DAY FRIDAY 3 APRIL 2015 GOOD FRIDAY SATURDAY 4 APRIL 2015 EASTER SATURDAY SUNDAY 5 APRIL 2015 EASTER SUNDAY MONDAY 6 APRIL 2015 EASTER MONDAY SATURDAY 25 APRIL 2015 ANZAC DAY MONDAY 8 JUNE 2015 QUEEN S BIRTHDAY MONDAY 5 OCTOBER 2015 LABOUR DAY FRIDAY 25 DECEMBER 2015 CHRISTMAS DAY SATURDAY 26 DECEMBER 2015 BOXING DAY MONDAY 28 DECEMBER 2015 ADDITIONAL DAY 2016 FRIDAY 1 JANUARY 2016 NEW YEARS DAY TUESDAY 26 JANUARY 2016 AUSTRALIA DAY Page 4 of 6

5 LOCAL PUBLIC HOLIDAYS FOR NSW 2015 For those holidays listed below and marked (PM) the public holiday is a half day holiday and applies from 12.00pm (midday) to 12.00am (midnight). FRIDAY 6 FEBRUARY 2015 Walcha Cup FRIDAY 13 FEBRUARY 2015 (9.00am to 5.00pm) Kangaroo Valley Show Wednesday 22 April 2015 (12.00pm to 5.00 pm) Maclean Show Tuesday 5 May 2015 (8.30am to 7.00pm) Yeoval Show Monday 11 May 2015 (12.00pm to 12.00am) Nyngan Show Wednesday 13 May 2015 (all day) Gilgandra Show Wednesday 20 May 2015 (all day) Coonamble Annual Show Wednesday 8 July 2015 (1.00pm to 5.00pm) Ramornie Race Day Thursday 9 July 2015 (1.00pm to 5.00pm) Grafton Cup Day Thursday 6 August 2015 (12.00pm to 5.30pm) Coffs Harbour Gold Cup Wednesday 2 September 2015 Walcha Council area That part of the County of Camden, the Parish of Cambewarra and those portions of the Parishes of Burrawang, Bugong, Yarrawa and Wallawa, situated within the Shoalhaven City Council area Police Patrol Districts of Maclean, Yamba and Iluka within the Clarence Valley Council area That part of the township of Yeoval that is situated within the Cabonne Council area Bogan Shire Council area Gilgandra Shire Council area Coonamble Shire Council area Grafton City within the Clarence Valley Council area Grafton City within the Clarence Valley Council area Coffs Harbour City Council area Town Improvement districts of West Wyalong, Wyalong and Page 5 of 6

6 West Wyalong Show Tallimba within the Bland Shire Council area Thursday 24 September 2015 Lismore Cup Day Tuesday 3 November 2015 Musswellbrook Cup Thursday 5 November 2015 (1.00pm to 5.00pm) Jacaranda Thursday Lismore City Council area Muswellbrook Shire Council area Grafton City within the Clarence Valley Council area The Local Public Holidays detailed above have been declared under the following order: The Public Holidays Amendment Order For further information on public holidays please contact the AHA NSW Legal and Industrial Affairs Department on (02) Page 6 of 6