Businesses with employees who travel between states and territories for work frequently encounter the issue of whether interstate employees are entitled to local public holidays.

Consider this scenario: if an ACT-based company sends an employee on a short work trip to Western Australia, and during that time, the Labour Day public holiday is observed in the ACT but not in Western Australia, is the employee still entitled to the public holiday in ACT?

 

Public holidays and employees interstate

This can be a particularly common problem for those companies that operate in cities or towns situated on state or territory borders. Generally, the appropriate jurisdiction is the one where the work (or the majority of the work) is carried out under the contract of employment.

In the above scenario, the employee resides in the Australian Capital Territory but performed work in Western Australia (where it was not a public holiday): because the work under his contract of employment is to be performed primarily in the Australian Capital Territory, then the public holidays prescribed under ACT public holiday legislation will apply. 

Therefore, the employee performed work on a public holiday, with the appropriate public holiday conditions in his award or employment contract being applicable.

Tip: Where work involves interstate travel, it may be prudent for an employer to put a reference to the relevant state or territory public holiday legislation in the employee’s contract of employment, to avoid any uncertainty on this point. 

The relevant modern award or enterprise agreement may also allow the employer and an individual employee (or majority of employees in the establishment) to agree on the substitution of a day or part-day that would otherwise be a public holiday. 

 

What about Award/agreement-free employees?

In the case of an award/agreement-free employee, the Fair Work Act 2009 (s115(4)) provides that the employer and the employee may agree to substitute a public holiday for another day.