For example, imagine a head office based in Victoria, with a team of employees working in Albury, New South Wales. NSW declares a half-day public holiday for the Albury area during the Albury Gold Cup.

Does that mean the Albury workforce is entitled to the half-day as a public holiday, even if the head office is in another state?

 

Public holidays in other states or territories

The New South Wales government declares local public holidays for designated regions within that state. Local public holidays are declared under the Public Holidays Act 2010 [New South Wales], to be read along with the Fair Work Act (FWA).

This means the half-day holiday is recognised by the National Employment Standards (NES) as a holiday under the FWA and applies regardless of the enterprise agreement terms (or a modern award).

The FWA (s115) recognises as a public holiday “any other day, or part-day declared under a law of a State or a Territory to be observed within the State or Territory, or a region of a State or a Territory….”.

Consequently, this would include the Albury Gold Cup half-holiday as it has been declared a holiday under the relevant New South Wales public holiday law.

All employees, including award/agreement-free employees, would be entitled to the afternoon off with pay in this circumstance where the half-day falls during the employee’s ordinary hours (i.e. between 12 noon and 5 pm). In the case of an employee covered by an enterprise agreement or a modern award, there may be an entitlement to payment at the appropriate public holiday penalty rate where work is performed on a half-day holiday.

 

Enterprise agreement and modern award terms

A modern award or an enterprise agreement may contain provisions concerning public holidays, including:

  • The substitution of certain public holidays may be made by agreement between the majority of employees in the establishment, or an individual employee, to take a public holiday on another day instead of the designated day
  • Where a public holiday falls on an employee’s RDO, the employer may either pay an additional 7.6 hours pay at the ordinary rate or 7.6 hours of extra annual leave or a substitute day off on an alternative weekday.

It may be that the above-mentioned enterprise agreement may contain terms that allow the day to be substituted for another day. Reference should be made to the applicable modern award or enterprise agreement to determine the appropriate penalty rate for work on a half-day holiday and whether the half-day can be substituted to be observed on another day.

 

Award/agreement free employees

The FWA (s115(4)) provides that an award/agreement-free employee may agree on the substitution of a day or a part-day for a day or part-day that would otherwise be a public holiday. In this circumstance, the equivalent time off in lieu (five hours – noon to 5 pm) would suffice.