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  • Writer's pictureJenkins Legal & Advisory

Employment during the Festive Season

We are reaching a time of year peppered with Public Holidays. Here’s a quick outline of some of your obligations as an employer and your rights as an employee at this time of year.

The public holidays over this festive season are:

  • Sunday, 25 December 2016 – Christmas Day

  • Monday, 26 December 2016 – Boxing Day

  • Tuesday, 27 December 2016 – Christmas Day holiday (as Christmas Day falls on a weekend)

  • Sunday, 1 January 2017 – New Year’s Day

  • Monday, 2 January 2017 – New Year’s Day holiday (as New Year’s Day falls on a weekend)

Do I have to work on a public holiday?

The Fair Work Act 2009 states that an employee is entitled to be absent from work on a public holiday, however an employer can request an employee to work on a public holiday if the request is reasonable. The employee can then refuse the request if the request is not reasonable, or the refusal is reasonable.

In determining whether a request or a refusal is reasonable, several matters are considered, including:

  1. the workplace’s needs;

  2. the nature of the employee’s work;

  3. the employee's personal circumstances (eg. family responsibilities);

  4. whether the employee works full-time, part-time, casual or shiftwork;

  5. whether the employee’s entitled to receive more pay for working on a public holiday; and

  6. how much notice the employee is given to work, or how much notice the employee gives that they refuse to work.

Not working on a public holiday?

If an employee would normally work on a day that a public holiday falls, they will receive their base rate of pay (ie. standard rate, not including any loadings, overtime, etc) calculated on the ordinary hours they would have worked if they weren’t away for the public holiday. An employee will not be paid for a public holiday if they do not normally work on the day on which it falls. The relevant Award, enterprise agreement or other registered agreement may set out other relevant conditions, so should also be consulted.

Working on a public holiday?

As a minimum, an employee will be paid their base rate of pay for all hours worked on a public holiday. The applicable Award, enterprise agreement or other registered agreement should then be consulted by the employer to determine whether the employee has any additional entitlements, including additional pay (loadings, etc), extra days off, etc.


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